[Update3 – 10PM February 8] Edwin Hart Turner was executed at 7:21PM EST after receiving a lethal injection at the Mississippi State Penitentiary. Turner declined to make a final statement.
[Update2 – 1PM February 8] The Fifth Circuit has ruled 2-1 to lift the stay of Turner’s execution, and Mississippi officials say that they plan to carry out the execution as originally scheduled this evening at 6PM. Turner’s petition to the Supreme Court is still pending.
[Update – 7PM February 6] U.S. District Judge Carlton Reeves in Jackson, Mississippi has blocked Turner’s execution until at least February 20th. The order is a response to the argument from the Louisiana Capital Assistance Center that Mississippi corrections officials have denied Mr. Turner access to mental health professionals to evaluate his mental illness. The evaluations could be critical to the success of Mr. Turner’s petition to the Supreme Court, described in the original post below.
[Original – 4:30PM February 5] Barring action by the United States Supreme Court or the governor, Edwin Hart Turner will be executed by the state of Mississippi at 6 p.m. on Wednesday, February 8, 2012. Turner, represented by attorneys from the Louisiana Capital Assistance Center, has filed a petition for a writ of certiorari to the Supreme Court arguing that the pending execution would violate the Eighth Amendment’s prohibition on cruel and unusual punishments because at the time of his offense Mr. Turner “suffered from a serious mental illness that substantially impaired his ability (a) to appreciate the nature, consequences, or wrongfulness of his conduct, (b) to exercise rational judgment in relation to conduct; or (c) to conform his conduct to the requirements of the law.” Pet. at i. This formulation of the effect of mental illness on criminal culpability is taken directly from a resolution adopted by the American Bar Association recommending that defendants who suffer from the described effects of mental illness should not be eligible for capital punishment. Though the Supreme Court has not yet placed a categorical bar on the execution of the mentally ill, Mr. Turner can certainly draw hope from recent decisions by the Court placing such categorical bars on the execution of the mentally retarded and minors. The current members of the Court may be receptive to the argument made in Mr. Turner’s brief, and should they grant the petition, Mr. Turner’s case may lead to a decision demanding a more humane system for the imposition of capital punishment.
Mr. Turner’s great-grandmother was diagnosed as schizophrenic and committed to the state mental hospital three times. Pet. at n. 14. Her daughter was also committed to the hospital three times for schizophrenia, the third time for four years. Id. Edwin Turner, Mr. Turner’s father and namesake, committed suicide by firing a gun into a shed full of dynamite. Id. When he was eighteen years old, Mr. Turner attempted suicide by firing a rifle into his mouth, which left him with permanent and severe facial disfigurement. Pet. at 7. Since that time, Mr. Turner has worn a towel wrapped around his face to hide his disfigurement, which was true both when he committed the murders and when he appeared in court. Pet. at 8. After being hospitalized for slitting his wrists, Mr. Turner was readmitted to the hospital by court order and treated for a major depressive disorder and personality disorder. Pet. at 8-9. The first cert petition on behalf of Mr. Turner focused on the question of whether his trial lawyers missed evidence that Mr. Turner’s mental illness was not “well controlled” after his release from the hospital, as stated by the defense expert. 2011 Pet. at 4-5. Those close to Mr. Turner recall him staying up all night writing because “his mind was going too fast.” Though normally self-conscious, at one point shortly before the crimes he stripped off his clothes and danced in bar. Only a few days before the crimes he broke down sobbing uncontrollably, at various times saying both “I am not a bad person,” and “I am a bad person,” and then woke up the next morning with no memory of his actions. 2011 Pet. at 6.
Six weeks after his release from the court ordered hospitalization, on the night of December 12, 1995, Mr. Turner and his friend, Paul Murrell Stewart, decided to rob a local truck stop. Mr. Turner shot Eddie Brooks, an employee at the truck stop, in the chest and then in the head. The two men moved on to a gas station, where Stewart went inside to rob the store, and Mr. Turner remained outside and shot Everett Curry, pleading for his life, in the head. In addition to his “signature towel,” Mr. Turner committed the murders while wearing a jacket that said “Turner.” The robberies netted a total of about $400, money of which Mr. Turner was not in need. Stewart testified against Mr. Turner and received a life sentence, while Mr. Turner was convicted of two counts of capital murder and sentenced to death on each count. Stewart has written a letter to Mr. Turner about the night of the murders stating “I thought you went completely insane, and didn’t think you knew what you were doing!” 2011 Pet. at 7.
Mr. Turner’s argument to the Supreme Court is that “the death penalty is reserved for a narrow category of crimes and offenders,” and his execution would be a violation of the Eighth Amendment because his mental illness makes it inappropriate to classify him “among the worst offenders.” Roper v. Simmons, 543 U.S. 551, 569 (2005); see also Pet. at 17. In Roper, the Court placed a categorical prohibition on the execution of juvenile defendants. The Court in Roper quoted from Atkins v. Virginia, decided only three years earlier, to declare that “[c]apital punishment must be limited to those offenders. . .whose extreme culpability makes them ‘the most deserving of execution.’”Roper, 543 U.S. at 568 (quoting Atkins, 536 U.S. 304, 319 (2002)); see also Pet. at 17. The Court in Atkins had imposed a similar categorical prohibition on the execution of the mentally retarded. 536 U.S. at 321. Both Atkins and Roper pointed to the reduced personal culpability of the two classes of defendants, a trait, Mr. Turner’s attorneys argue, that is shared by the mentally ill as a result of “substantial impairment of cognitive processing or impulse control.” Pet. at 18. The petition additionally argues that given both this reduced culpability and reduced ability to act rationally based on available information, the execution of the mentally ill, like the execution of the mentally retarded or juveniles, fails to achieve either an appropriate retributive or deterrent effect. Pet. at 19; see also Atkins, 536 U.S. at 319; Roper, 543 U.S. at 571.
Given the close similarities between the reasoning the Court applied in Atkins and Roper, and the applicability of that reasoning to the mentally ill, Mr. Turner’s case could present an opportunity for the Court to expand on the types of mitigating characteristics that qualify defendants for a categorical exclusion from capital punishment. Atkins was a 6-3 decision, written by now retired Justice Stevens. Stevens’s opinion was joined in its entirety by Justices O’Connor, Kennedy, Souter, Ginsburg, and Breyer. Justices Rehnquist, Scalia, and Thomas were in the minority, all three joining dissenting opinions by Rehnquist and Scalia. Roper was a 5-4 decision, with O’Connor joining the minority, though writing only for herself in dissent. Critically though, Justice Kennedy wrote the majority opinion in Roper overturning the Court’s contrary ruling in Stanford v. Kentucky, 492 U.S. 361 (1989). Justice Kennedy again wrote for the same majority in Panetti v. Quarterman, 551 U.S. 930 (2007) (Justices Roberts and Alito had replaced Justices Rehnquist and O’Connor in the minority). In Panetti, Kennedy begins by quoting Ford v. Wainwright, 477 U.S. 399, 409-10 (1986): “[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” 551 U.S. at 934 (alteration in original). Kennedy goes on to engage in what the dissent calls “bend[ing] over backward” to allow Panetti to proceed on a second habeas petition. Id. at 963 (Thomas, J., dissenting). Justice Kennedy concludes that Panetti was denied adequate procedures to determine his competency to be executed, id. at 952, and that the Fifth’s Circuit’s definition of incompetency was too restrictive to afford the proper Eighth Amendment protection, id. at 960.
The two Kennedy opinions point to the conclusion that the swing Justice is concerned about narrowing the conditions under which the death penalty can be imposed, and does not feel as constrained as the more conservative Justices by an overriding concern for constitutional federalism or the strict requirements laid down in the Anti-terrorism and Effective Death Penalty Act limiting the federal courts’ ability to review state capital sentences. If this is a valid conclusion from Kennedy’s prior opinions, Mr. Turner should have hope that the Court will be interested in hearing his case, and may in fact rule in his favor. Though the composition of the Court has changed since Atkins, Roper, and Panetti, there is likely still a five-Justice majority willing to be critical of the application of the death penalty in the face of mitigating circumstances. Since Panetti, majority Justices Stevens and Souter have been replaced by Obama appointees Sotomayor and Kagan. In 2011, the Court decided Cullen v. Pinholster, holding that AEDPA requires a federal court reviewing a habeas petition from a capital sentence to review only the record available to the state courts in making a determination of error. 131 S. Ct. 1388, 1398. Justices Kennedy and Kagan both joined this part of the majority opinion. Justice Sotomayor dissented.
The majority also held that on the record before the state courts, the defendant failed to show that the state courts had misapplied Strickland v Washington in holding that trial counsel’s failure to adequately pursue evidence of mental illness did not qualify as ineffective assistance of counsel. Id. at 1403. Though Justice Kennedy also joined this part of the majority opinion, Justice Kagan did not. Justices Kagan and Ginsburg joined the part of Justice Sotomayor’s dissent concluding, inter alia, that “[h]ad counsel conducted an adequate investigation, the judge and jury would have heard credible evidence showing that Pinholster’s criminal acts and aggressive tendencies were attributable to a disadvantaged background, or to emotional and mental problems. They would have learned that Pinholster had the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability.” Id. at 1432 (Sotomayor, J., dissenting) (internal quotations and citations omitted). Justice Sotomayor’s impassioned dissent, and Justice Kagan’s joining of that dissent, indicate that the two junior Justices are at least likely to replace their predecessors in a five-Justice majority critical of the application of capital punishment to the mentally ill.
Four Justices have to vote to grant a petition for certiorari, and of course five have to vote to decide a case in a certain way. If Justice Kennedy continues his trend of voting to exclude less culpable defendants from receiving capital sentences, and if Justices Kagan and Sotomayor share their predecessors tendencies, then there is likely a five-Justice majority to establish a categorical prohibition on the execution of the mentally ill. First though, four Justices have to vote to hear the case. Justice Kagan has said in the past that she has has no “moral qualms” about the death penalty, and Justice Kennedy joined the majority in its entirety in Pinholster. If there are two of the potential five Justices that are not ready to hear a case asking for further restrictions on the application of capital punishment, the case may never make it before the Court in time to save Mr. Turner. The cert petition itself may even frighten some Justices about the scope of the issues potentially on the table if they chose to hear the case because the petition argues first that there is an evolving standard of decency against the execution of the mentally ill, and then that there is in addition an evolving standard against the death penalty itself. Pet. at 14. Ultimately though, Mr. Turner’s argument is directly within the line of reasoning applied in Atkins and Roper, and those of us who desire a more humane and justified criminal justice system can hope along with Mr. Turner that his petition will be granted in time to save his life.