Andrew Cohen, a journalist for The Atlantic, has written a lengthy article about what’s happening currently with the case of John Ferguson, who was originally set to be executed in Florida in October. Ferguson has had numerous stays now because of continuing questions about his sanity and is currently still awaiting execution on Florida’s death row. I’ve taken the liberty of posting the text of Cohen’s article here for easy access for you folks, but you can also view the original on The Atlantic‘s site. If you have any comments on Cohen’s piece, you may want to join the discussion on The Atlantic‘s site, as he undoubtedly will not see them here. There have already been a few comments on the piece, both positive and negative, so I’m sure your opinion would be welcomed.
Florida Governor Rick Scott wanted, finally, to get rid of John Ferguson, but he wanted to appear fair in doing so. The convicted multiple murderer had been on the Sunshine State’s death row for decades — for 34 years, for a generation — but questions lingered about his mental competency. As far back as 1971, in fact, six years before Ferguson first killed, the state’s own psychiatrists had diagnosed him as suffering from “a major mental disorder” that rendered him “psychotic and incompetent.” Forty years later, he was hardly better.
So after Governor Scott set Ferguson’s execution date for October 16th, and defense attorneys duly alerted officials to their client’s diminished mental state, the governor appointed three psychiatrists to a “commission” to evaluate Ferguson, to determine whether he was sane enough to be lawfully executed by the state. The psychiatrists, who had never before seen or treated Ferguson, were ordered to move quickly — to examine the prisoner on October 1st and issue their report on October 2nd. Here’s how the defense describes what happened next:
The Commission did even better: It managed to send a terse one-and-a-half page report to the Governor by 4:00 p.m. the same day it evaluated Ferguson. Of course, that sort of efficiency was accomplished thanks only to some short cuts. For instance, even though Ferguson’s mental-health records span thousands of pages of paper, the Commission evaluated only a subset of them — hand-picked by the State’s lawyers. Notably absent from those records were any of the pre-1978 diagnoses from State psychiatrists consistently documenting Ferguson’s paralyzing psychosis.
That said, the Commission still had to make their way through two file boxes of medical records — a task it knocked off with stunning efficiency, taking a mere 90 minutes to complete. Needless to say, that feat came with its own cut corners. As the Commission’s Chair later conceded on cross-examination, he did not review all of the records provided.
The Commission took the same fleet approach to examining Ferguson, meeting with him for just under 90 minutes. During that interview, Ferguson demonstrated no rational understanding of why the State was seeking to kill him or what would happen to him. For instance, he told the Commission — consistent with what he has told psychiatrists for 40 years–that he is the Prince of God. He also told them that he would “come back to life,” that his body would not remain in his grave, and that he was destined to be the “only one” at the right hand of God.
Ferguson also reported to the Commission a long history of other delusions and hallucinations — including current delusions and hallucinations. Among them, Ferguson explained that he heard God whisper to him (through his set of “inner ears”) plans for fulfilling his destiny as the Prince of God; that he communicated with his long-dead father, who has vowed to protect him from death or harm; that he believes the State lacks the power to kill him; that he sees “shadow people” who watch him; that he is convinced there are communist plots that he will “drive away” after he assumes his seat at the right hand of God. [Citations omitted by me.]
You likely already know what happened next. What happened next is what frequently happens in these capital cases — when state officials, acting in frustration and anger, decide they have offered all of the due process and equal protection protections they want to offer a condemned man. When the search for the truth of a matter — like whether a man who believes he is the Prince of God is sane enough to be executed — becomes a burden, the state no longer wishes to bear honorably. The defense again picks up the story:
The Commission, however, saw nothing amiss. To be sure, it conceded in the final paragraph of its report that Ferguson had indeed exhibited psychotic symptoms. But the Commission dismissed them out of hand. In its view, Ferguson “feign[ed] religious delusion thinking” and “feigned other psychotic symptoms.” The Commission, however, never administered a single test for feigning–even though some of the Commissioners had brought testing equipment with them for precisely that purpose.
Having written off all of Ferguson’s psychoses as “feigned,” the Commission concluded that Ferguson “(1) has no genuine current mental illness; and (2) understands the nature and effect of the death penalty and why it was imposed on him.” The Commission’s members would later concede that they reached this conclusion after a “short discussion” immediately following the interview, [a discussion] which lasted approximately five to ten minutes. As the Circuit Court would later find, the Commission “did not complete a thorough and exhaustive interview of Ferguson.” (citations omitted by me).
The Florida Courts: Sane Enough to Be Executed
That’s the same “circuit court,” by the way, that quickly authorized Florida to proceed with the Ferguson execution — despite its concern over the commission’s work, and despite finding that Ferguson was a “paranoid schizophrenic” who harbored “genuine” delusions. On appeal, the Florida Supreme Court agreed, concluding that despite Ferguson’s severe mental illness, he was sane enough to be executed because he was aware of the punishment he was about to receive and why he was about to receive it.
“Ferguson’s only comments in the record regarding his burial — comments made directly to the Commission — are that after his body is buried ‘just like Jesus, you’ll come and look and you won’t find me there.'”
Ferguson had passed the last test of his life, the state supreme court ruled, because he was “aware that he has never before had a death warrant signed on his behalf” and “that he would be the first person to receive Florida’s current protocol of medications for lethal injections.” So a new execution date was set for October 23rd and the days leading up to it were marked by a flurry of court filings and responses, all surrounding the extent of Ferguson’s competency, the applicable legal standard for evaluating it, and the degree of deference due to Florida’s courts.
On the 20th, three days before Ferguson was to be executed, a federal trial judge halted the proceedings. He had questions, he wrote, about whether Florida’s courts had properly applied the United States Supreme Court’s new standard for determining when a capital inmate is not competent enough to be executed. Ferguson then asked the 11th U.S. Circuit Court of Appeals to stay his execution, which it did just minutes before he was set to die. When Florida appealed that ruling to Washington, the justices refused to intervene. John Ferguson was going to get another day in court after all.
The Federal Courts: The “Meaning and Purpose” of Punishment
That day has come. On Thursday afternoon, a panel of three 11th Circuit judges will convene to determine Ferguson’s fate. The federal judges will preside over a conference call — an oral argument Florida argued wasn’t even necessary. “The decisional process will not be significantly aided by oral argument,” Florida’s lawyers wrote, and, “further, since this is a death case, upon which execution of sentence was recently stayed at, literally, the eleventh hour, any delay for the sake of oral argument would be particularly inappropriate.”
For once, Florida may have a point. The appeals panel doesn’t have a complicated job ahead. The judges have to determine whether the Florida courts followed both the letter and the spirit of the U.S. Supreme Court precedent set out in a 2007 case styled Panetti v. Quarterman. In Panetti, the justices held 6-3 that a state had to give a condemned prisoner a meaningful competency hearing which considered more than just the inmate’s awareness of his crime and the punishment he would receive for it. For the majority, Justice Anthony Kennedy wrote:
Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose. It is therefore error to derive from Ford, and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted.
Florida’s latest brief in this case is striking for the righteous anger it exudes. The state argues that the Florida courts which reviewed Ferguson’s case applied the correct legal standard Justice Kennedy announced in the Panetti case, a standard that doesn’t necessarily extend to cases like this one anyway. “The Florida Supreme Court’s decision did not state that [Ferguson’s] claimed delusional belief or alleged mental illness was irrelevant to the inquiry,” the state’s attorneys told the 11th Circuit:
Nor did the court not apply a bare ‘factual awareness test’ as argued by [Ferguson]. The court appropriately considered the very limited Prince of God belief expressed to the Commission [the only such belief specifically found credible by the circuit court below], but, noted, that Ferguson nonetheless expressed a clear and unambiguous knowledge of his impending execution and the reason why this punishment had been imposed upon him.
Florida argues, in other words, that its state court judges satisfied the Panetti test by merely considering Ferguson’s delusions in the context of other factors. Those factors include, the state argued, “the complete and utter lack of observable symptoms of mental illness in a closely supervised setting of death row for more than a decade.” In other words, the Panetti case may require state judges to consider as “relevant” a prisoner’s delusions — but it doesn’t require state judges to declare an inmate incompetent based solely upon those delusions.
As for the work of Gov. Scott’s “Commission,” the psychiatrists who quickly judged Ferguson competent for execution without reviewing all of his medical records, Florida’s lawyers tried to reassure the 11th Circuit that it was never really a close call. From the state’s brief: “Dr. Myers explained: ‘It was clear to me that there was no evidence of any significant mental illness. He was — his thoughts and thinking were clear.'” If Ferguson had ever suffered from paranoid schizophrenia, the state’s doctors testified, he wasn’t suffering now.
To Ferguson’s lawyers, these arguments — and the ruling by the state supreme court which found their client competent enough to be executed — are telling instances of the elevation of form over substance. They are also telling examples of state courts in capital cases willfully ignoring those Supreme Court precedents with which they don’t agree. From one of the Ferguson briefs filed with the 11th Circuit:
[Florida] “contends that the Florida Supreme Court decision was ‘in accordance with Panetti because the Florida Supreme Court did not expressly state that [Ferguson’s] claimed delusional belief or alleged mental illness were irrelevant to its inquiry.’ True. The court never expressly declared Ferguson’s delusions irrelevant. It just completely ignored them in its analysis. And that is what matters under Panetti.
Here the defense brief also is strikingly angry. For example, Ferguson’s lawyers dispute Florida’s representation of their client’s comments about burial. The state told the 11th Circuit that Ferguson “rationally” discussed the “burial of his remains.” Not so, defense lawyers claim:
Ferguson’s only comments in the record regarding his burial — comments made directly to the Commission — are that after his body is buried “just like Jesus, you’ll come and look and you won’t find me there” because he will “be on the right hand of God,” after which “he’d be returned to his rightful place in the world” on “earth in a human form.” And at no time when the death warrant was read to Ferguson did he “express in any way… to anyone in the room at the time… that he understood that he was going to die.”
There is simply no way, the defense asserts, that Ferguson could be competent to be executed under current Supreme Court precedent so long as he continues to: 1) suffer from paranoid schizophrenia; 2) has “genuine” delusions that he is the Prince of God, and; 3) is not malingering or feigning his illness. And neither the doctors who briefly evaluated Ferguson nor the state courts which rubber-stamped the conclusions of those doctors have been able to adequately prove or explain otherwise.
A Glance Behind, and the Road Ahead
When it convenes Thursday, the 11th Circuit already will have a head start toward its answer. The judges know this case. Last month, a few days before Ferguson’s execution date, in that flurry of motions, the panel was asked by Florida at one point to keep the execution on track. The 11th Circuit agreed to do so — you could say it was against a stay for Ferguson before it was for a stay for Ferguson — using language that offers insight into where the court may come out after Thursday’s argument. From the 11th Circuit’s October order:
The Governor of Florida appointed a commission of three psychiatrists to determine whether Ferguson is competent to be executed, and the commission unanimously found that he is. A state trial court then conducted a full and fair evidentiary hearing and found Ferguson competent to be executed. The Florida Supreme Court unanimously affirmed the finding of the trial court. Ferguson has failed to identify clear and convincing evidence upon which the district court could decide that the state court unreasonably determined that Ferguson is competent to be executed.
(Here, folks, is an example of how law becomes separated from fact, how the truth of a matter gets whitewashed. Gone from this version of events is the shoddy work of those psychiatrists on the governor’s commission, the ones who didn’t look at all the evidence or even sleep on their conclusions. Gone is the state trial judge’s concern about that commission’s work. Gone also is that judge’s determination that Ferguson was suffering from “paranoid schizophrenia,” and from a “genuine” Prince of God delusion, and that he was not malingering.)
Reasonably recognizing that the appellate panel may already have made up its mind on Ferguson’s competency, fearful that the federal judges are poised to endorse and enable Florida’s latest bid to rid itself of the man, defense attorneys, in their final brief, gently urged the 11th Circuit to reconsider its perceptions about the Ferguson case, reminding the judges that their October ruling came upon them in a matter of hours, on an emergency basis, with their client’s execution time looming. Now, Ferguson’s lawyers say, things are different:
This Court has the benefit of both parties’ best efforts now. The parties now have briefed the merits of the habeas appeal, and Ferguson has explained at length, as he had not been in a position to before, how the Florida Supreme Court unreasonably applied [U.S. Supreme Court precedent] when it found Ferguson competent to be executed.
This Court can and should review the parties’ thorough briefing and take the time it needs to conduct a searching review of Ferguson’s claims. It is not tethered to its earlier determination, nor to the Supreme Court’s denial of certiorari at a different stage of this case, and the state is wrong to suggest otherwise.
What are the odds that the 11th Circuit is going to undertake that “searching review?” You tell me. Florida officials are angry that Ferguson has not yet been executed. Florida believes it has given the condemned man all the due process to which he is entitled. Florida believes that a capital defendant may be “genuinely” delusional but still understand the nature of capital punishment. Justice Kennedy may end up being the only man left in America who is both able and willing to tell the state why it’s wrong.
You can read the coverage on this blog of Ferguson’s execution in these previous posts, listed in reverse chronological order: