[DP] Fwd: James Colburn: mentally ill man scheduled for execution in Texas

[Carole Johnson]

>From: Rick Halperin <rhalperi at post.cis.smu.edu>
>Reply-To: TCADP-BOARD01 at yahoogroups.com
>To: TCADP-BOARD01 <TCADP-BOARD01 at yahoogroups.com>
>Subject: [TCADP-BOARD01] death penalty news---TEXAS
>Date: Thu, 17 Oct 2002 09:08:59 -0500 (CDT)
>
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>Oct. 17
>
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>TEXAS:
>
>James Colburn: mentally ill man scheduled for execution in Texas
>
>
>"You are going to hear evidence that the defendant is a paranoid
>schizophrenic... You will hear evidence that he's heard voices and you
>are going to see him on tape. He's shaking or fidgeting. The State is not
>going to contest or deny any of that..." Prosecutor, opening statement,
>trial of James Colburn, October 1995.
>
>
>The State of Texas intends to kill James Blake Colburn in its execution
>chamber on 6 November 2002. It intends to do so despite the fact that the
>42-year-old Colburn has an extensive history of chronic paranoid
>schizophrenia, a serious mental illness whose symptoms include
>hallucinations and delusions. His mental illness is undisputed by the
>state. He was displaying signs of his illness on the day of the crime,
>including at the time of his confession to police. In pre-trial
>detention, his mental health treatment was inadequate, resulting in
>several psychotic episodes. Finally, there is evidence that he was not
>competent to stand trial  not least because during that period he was
>receiving injections of a powerful sedative drug which apparently caused
>him to lose awareness of the proceedings and even to fall asleep in open
>court.
>
>Texas is the main executing state of the United States of America. It
>accounts for 1/3 of the executions carried out nationwide since the
>USA resumed executions in 1977. As of 15 October 2002, Texas had executed
>285 men and women out of a national total of 805. As concern has
>increased in the USA about the fairness and reliability of the country's
>capital justice system, Texas appears to be immune from this concern, and
>its machinery of death remains as active as ever. It accounts for around
>half of the country's executions in 2002, 29 out of the 56 judicial
>killings carried out to 15 October.
>
>Texas continues to contravene international human rights standards in its
>pursuit of the ultimate punishment. For example, it leads the country,
>and indeed the world, in the use of the death penalty against child
>offenders, those under 18 at the time of the crime. It has executed
>prisoners whose legal representation at trial or on state appeal was
>inadequate. Prisoners have been put to death despite serious doubts about
>their guilt. Texas has executed foreign nationals who were denied their
>consular rights after arrest. Finally, Texas has used the death penalty
>against people with mental retardation and mental illness.
>
>James Colburn's execution would fly in the face of repeated resolutions
>at the United Nations calling on the diminishing list of countries that
>still retain the death penalty not to impose it or carry it out against
>people with mental disorders. Past cases suggest that the Texas
>authorities care little about such resolutions or international human
>rights treaties and other standards. In which case, Texas is part of a
>problem that its former governor, George W. Bush, cited in a recent
>address to the UN General Assembly. Seeking a resolution on Iraq,
>President Bush spoke of UN resolutions being "unilaterally subverted",
>and proclaimed the US Government's desire to see a United Nations that is
>"effective, and respected, and successful". For consistency's sake, not
>to mention for the sake of compassion, the President should make a
>personal appeal to the Texas Board of Pardons and Paroles and to his
>successor in the governor's mansion in Austin, in favour of commutation
>of James Colburn's death sentence.
>
>Amnesty International members in the USA and around the world continue to
>appeal to the Texas Board of Pardons and Paroles to recommend that
>Governor Rick Perry commute James Colburn's death sentence in the
>interest of justice and decency and the reputation of Texas and the
>country as a whole (see Urgent Action 300/02, AMR 51/157/2002, 3 October
>2002).
>
>The crime and confession
>
>On 26 June 1994, Montgomery County police in eastern Texas received a
>phone call from a neighbour of James Colburn who said that Colburn had
>told him that he had just killed a woman and that her body was in his
>apartment. James Colburn waited for the police to arrive, and was
>arrested after the body of 55-year-old Peggy Louise Murphy was found in
>his home. She had been strangled and stabbed.
>
>At the police station, on the same day as the murder, James Colburn gave
>a videotaped confession. He told the interrogating officer that he
>suffered from paranoid schizophrenia. The recording indicates that
>Colburn was struggling with his mental illness. He rocked back and forth
>in the chair when sitting and paced to and fro when standing. He lost
>control of his bladder, and had to be provided with dry clothing. The
>interrogating officer noticed that James Colburn was shaking 
>uncontrollably.
>
>In his confession, James Colburn said that he had seen Peggy Murphy on
>the highway and had invited her into his apartment. He stated that he had
>"this flash that he was going to hurt her". He said that he tried to have
>sex with her, but that she did not want it, and he abandoned his attempt.
>He said that "this one impulse came over me said to kill her... I
>couldn't stop myself". After the murder he said that he had considered
>leaving the area, but had instead decided to go to his neighbour's home
>and tell him to call the police.
>
>The question of sanity and competency
>
>James Blake Colburn first began displaying symptoms of mental illness,
>including auditory and visual hallucinations, in his teens and was first
>diagnosed as suffering from paranoid schizophrenia at the age of 17. This
>was also the age at which he was subjected to a homosexual rape by a man
>who had picked him up hitchhiking.
>
>At the time of the murder of Peggy Murphy, James Colburn was being
>treated on an outpatient basis for paranoid schizophrenia. His treatment
>appears to have been irregular. For example, on 4 May 1994, eight weeks
>before the murder, the psychiatrist on his case wrote in Colburn's
>medical records: "Off meds? Several months. Needs to restart".
>
>According to a post-conviction psychiatric assessment, in the week
>leading up to the murder James Colburn was allegedly experiencing
>increasing auditory and visual hallucinations. He said that on the
>evening before the murder he took an overdose of Valium, about 10-15
>pills, in response to an auditory command hallucination to kill himself.
>When he awoke the next day, he was still experiencing auditory
>hallucinations. Soon afterwards he saw Peggy Murphy and invited her into
>his apartment. According to the confession, and his subsequent
>psychiatric assessments, the auditory command hallucinations continued
>during the time she was in his home, and according to his recollection,
>led directly to her murder.
>
>In pre-trial custody in Montgomery County Jail, it seems that James
>Colburn's mental health care was less than adequate. Despite being an
>indigent defendant, the jail required Colburn to pay for his medication
>from the small amount of money he had in his commissary account. At
>times, this mentally ill man chose to spend his money on soft drinks and
>sweets rather than on anti-psychotic medication. Indeed, the jail records
>indicate that there were gaps in his pre-trial treatment. For example,
>the entry for 27 June 1994 reports that Colburn was on suicide watch.
>There is then no other entry until 11 September 1994. On 19 September,
>the record indicates that James Colburn "states he no longer will
>continue taking his medication due to the fact that he does not want to
>loose [sic] money from commissary to pay for it." On 9 October, he was
>treated on an emergency basis. He was suicidal and had been urinating and
>defecating on himself, and was "very agitated". He was again placed on
>suicide watch. A few days later, the records indicate that he was again
>refusing medication because "he does not want to pay for it". On 21
>October, he was "very agitated and contemplating suicide". He was placed
>in restraints and given anti-psychotic medication. In November 1994, he
>told the doctor that he was hearing voices that were telling him to kill
>himself. The doctor apparently persuaded him to resume his medication.
>There are no records for the next 2 months. His condition deteriorated
>in mid 1995. An entry of 6 June, for example, stated that Colburn "stated
>that he wants to kill himself. He also states that he hears voices that
>tell him to kill himself and that his family is dead". He was again
>placed in restraints.
>
>As part of the proceedings against him for the murder of Peggy Murphy,
>the trial court appointed psychologist Walter Quijano to evaluate James
>Colburn's sanity at the time of the murder and his competency to stand
>trial. Dr Quijano concluded that Colburn was "mentally ill with
>Schizophrenia, paranoid-type, chronic, and should be in an inpatient
>psychiatric-type setting for his and others' protection". He concluded,
>however, that James Colburn was competent to stand trial, that is, that
>he was able to consult with his lawyer and had a rational as well as a
>factual understanding of the proceedings against him. Dr Quijano also
>concluded that Colburn was sane at the time of the crime, that is, that
>he knew his conduct was wrong at the time he committed it.
>
>The trial took place in October 1995, 10 months after Dr Quijano's
>examination. No competency hearing was requested by the defence or
>ordered by the court of its own accord at the time of the trial. At the
>trial, Dr Quijano testified as to the seriousness of James Colburn's
>illness, stating that his "paranoid schizophrenia is what we call
>intractable. It is chronic. It is not expected to disappear. He is
>chronically mentally ill and the onset is childhood and it is difficult
>to manage and difficult to treat." Dr Quijano was not asked, however, nor
>did he offer an opinion, as to James Colburn's present competency.
>
>At the request of the defence attorneys, another psychologist, Carmen
>Petzold, examined James Colburn in August 1995. She concluded that "he
>suffers from severe chronic mental illness, paranoid schizophrenia,
>depression with suicidal ideation, chronic polysubstance abuse, most
>likely linked to attempts at self-medication, and some memory deficits.
>It also appeared that he may have been suffering from a chronic
>Post-Traumatic Stress Disorder due to having been raped at age seventeen,
>which could produce blackouts, or periods of dissociation". She also
>concluded that he "appears...competent to stand trial". She further
>stated that it was "likely that on or about the time of the alleged
>offense, his judgment was severely impaired, possibly due to the
>interactive effects of his chronic mental illness, the presence of any
>drugs in his system, and his emotionally labile state due to the suicidal
>ideation." In her opinion, "the impact of his mental illness, including
>the presence of the suicidal ideation caused by living with the
>hallucinations, cannot be ruled out as preventing him from conforming his
>behavior to the law at the time of the crime".
>
>A few days before the trial, the defence attorneys contacted Dr Petzold,
>and informed her that she would not be needed to testify at the trial.
>Defence counsel relied solely on Dr Quijano to provide expert testimony
>on behalf of their client.
>
>During the trial, James Colburn received injections of Haldol, an
>anti-psychotic drug which can have a strong sedative effect. A lay
>observer, a nurse with experience of mentally ill patients, later signed
>an affidavit in which she stated:
>
>"I strongly believe that James Blake Colburn was under the influence of
>sedative drugs during the course of his capital murder trial. James Blake
>Colburn clearly experienced temporary losses of awareness while his trial
>was in progress and witnesses were testifying. James Colburn's lapses
>into what appeared to be a sleep state were not rare. The lapses were
>frequent in their occurrence. At intervals approximately ten minutes to
>fifteen minutes apart, James would begin to lean forward to the point
>that his chin rested on his chest and James was directly facing the table
>top before him. James would remain in this position until one or the
>other of his attorneys prodded him awake. When James did awaken he seemed
>confused..."
>
>She stated that, in her opinion, James Colburn's "lethargic condition
>prevented him from participating in his defense or even paying attention
>to his own murder trial".
>
>In post-conviction affidavits, James Colburn's trial lawyers stated that
>they believed that their client had been competent to stand trial.
>However, they acknowledged that their client had "dozed occasionally
>during the trial. On one occasion, Mr Colburn commenced snoring loudly
>and we requested a recess to permit him to wake up". The trial record
>contains the following on that particular incident:
>
>Defence lawyer 1: Judge, I don't think that it matters, but I think I
>need a break to walk my client around the room a little bit. He's snoring
>kind of loud.
>
>Defence lawyer 2: They apparently injected him last night to calm him
>down and I appreciate it. But he's sleeping right now.
>
>Defence lawyer 3: I don't know if it's going to matter too much, but I
>think it would be better if we had a minute to walk him around to wake
>him up.
>
>A widely known Texas case is that of Calvin Burdine, whose lawyer slept
>during parts of the trial. Burdine was finally granted a new trial,
>currently pending, after years on death row. Another prisoner, Carl
>Johnson, was executed in Texas in 1995, despite allegations that the same
>lawyer had slept during parts of his trial also.
>
>Texas now intends to execute a prisoner who slept during part of his
>trial as a result of medication he was taking for his mental illness. The
>clemency authorities should intervene and act where the courts have failed.
>
>The question of future dangerousness
>
>On 10 October 1995, the jury returned a death sentence, having determined
>that James Colburn would represent a future danger to society if allowed
>to live. A finding of "future dangerousness" is a prerequisite to a death
>sentence in Texas.
>
>Even today, there is public fear and ignorance around the subject of
>mental illness. Under the Texas capital sentencing scheme, even if the
>defence attorneys put on a persuasive case that their client's mental
>illness demands compassion, it may not be enough to overcome jurors'
>fears of the individual in front of them, whom they have just convicted
>of a violent crime. In some cases, legal representation of mentally ill
>capital defendants has been inadequate, as has been suggested in this
>case. This may be due to lack of resources or lack of experience. In
>other cases, a prosecutor's bid for a death sentence may lead such
>officials to play on juror fears and make a death sentence more likely
>under Texas's capital sentencing scheme.
>
>Arguing for a death sentence, the prosecutor in James Colburn's case
>suggested that the jury might prevent mass murder if they voted for
>execution: "To save the life of an innocent person is a huge thing when
>it is compared with the taking of a person that voluntarily chose to
>kill. How many lives will it save? I submit to you, even if there's a
>chance it will save one, he should be executed. But who knows, it may
>save one, it may save a dozen, it may save a hundred."
>
>Despite such exhortations, the jury evidently wished to consider a life
>sentence for this mentally ill man. During its deliberations, the jury
>foreman wrote a note to the trial judge asking if the defendant would be
>eligible for parole if he received a life sentence. The judge replied
>that the jurors were not to concern themselves with the issue of parole.
>
>In 1999, the foreman from the Colburn jury signed an affidavit. In it, he
>stated that, in his opinion, "the lack of information regarding when Mr
>Colburn could be released was a significant factor in some jurors'
>decisions at the punishment phase". This would appear to be confirmed by
>the affidavit of another member of the jury who said that her "central
>concern was with protecting society, and the only way I thought I could
>do that was to make sure that Mr Colburn did not receive parole... [Th]e
>Judge's reply only increased our frustration. We still had no idea if Mr
>Colburn would be released in ten, fifteen, twenty or forty years...
>Consequently, jurors continued to discuss the possibility that Mr Colburn
>would be released early". This juror said that the "primary reason" that
>she had voted for a death sentence was because of her "fear that Mr
>Colburn would be released early. Mr Colburn was 34 years old at trial.
>Had I realized that he would not finish serving his prison time until he
>was over 70 years of age, I sincerely believe that I would have voted to
>give him a life sentence".
>
>The death sentence is upheld on appeal
>
>The appeal courts have upheld the death sentence. This has been despite a
>number of affidavits and other additional information supporting the
>claim that James Colburn may not have been competent to stand trial. The
>power of executive clemency exists precisely to compensate for the
>rigidities of the judiciary, and are able to give full consideration to
>the fact of James Colburn's undisputed mental illness. The Texas clemency
>authorities should do the decent thing and recommend commutation of his
>death sentence.
>
>A forensic psychiatrist, David Axelrad, was retained by James Colburn's
>appeal lawyers to review the prisoner's medical records and examine him
>for the purpose of his state-level appeals. He conducted the assessment
>in 1997, and undertook an additional review in November 1999. In a report
>in 1999, Dr Axelrad stated that, in his opinion, Dr Quijano's original
>psychological evaluation of James Coburn was sufficient for the purpose
>of arriving at an opinion regarding the defendant's competency to stand
>trial, but only at the time of his examination and report, 10 and eight
>months before the trial respectively. However, Dr Axelrad continued:
>
>"Based upon my review of the medical records, during the time that he was
>incarcerated in the Montgomery County Jail at the time of the trial as
>well as my review of his records preceding his trial raises serious
>questions and concerns regarding his competency to stand trial at that 
>time."
>
>Dr Axelrad said that there should have been a competency determination at
>the time of the trial. He also said that, in his opinion, James Colburn
>was "actively psychotic" at the time of his confession, and that he had
>been "seriously sedated during the time of his trial". He also concluded
>that Montgomery County Jail had mismanaged James Colburn's treatment in
>pre-trial detention, and that the jail authorities should have continued
>to provide him medication when Colburn refused to pay for it himself.
>Finally, he suggested that James Colburn's trial attorneys had
>misunderstood their client's mental condition at the time of the trial.
>
>In September 2000, Dr Walter Quijano signed an affidavit in which he
>stated, that based on the information about the apparent sedative effect
>of Colburn's Haldol injections, it was his opinion that "during the trial
>itself, as opposed to the date on which I examined him, it is not
>reasonably probable that Mr Colburn.....was legally competent to stand
>trial". Dr Quijano further offered his opinion that based on the sedative
>evidence, "in order to assess Mr Colburn's competency at the time of the
>trial, it would have been necessary to halt proceedings temporarily and
>adjust Mr Colburn's medication so that he was oriented and aware."
>
>In the following month, Dr David Axelrad signed an affidavit, in which he
>agreed with Dr Quijano on the competency issue, stating:
>
>"it is my forensic psychiatric opinion that the presumption that Mr
>Colburn was competent during trial is not reasonable. Based on the fact
>that the court did not conduct a competency hearing or inquire in any
>fashion into whether Colburn was competent at the time of the trial, it
>is my forensic psychiatric opinion that it is not possible to
>retrospectively rebut evidence in the record indicating Mr Colburn was
>incompetent at trial with any forensic scientific confidence or
>professional integrity. Based upon my review of information available to
>the trial court, it is my forensic psychiatric opinion that evidence that
>Mr Colburn was actually incompetent during trial is clear and convincing."
>
>The appeal courts have disagreed. In May 2001, the US District Judge for
>the Southern District of Texas upheld the conviction and death sentence.
>A year later, the US Court of Appeals for the Fifth Circuit rejected an
>appeal against the lower court's ruling, concluding that Colburn had
>failed to make a "substantial showing of the denial of a constitutional
>right". On the question of the defendant's drowsiness during the trial,
>the Fifth Circuit judges said: "We need not determine the number of times
>Colburn fell asleep during trial because whether Colburn fell asleep once
>or slept through most of his trial is not dispositive of Colburn's
>competence".
>
>The execution date of 6 November was set by the Montgomery County trial
>court. If the US Supreme Court refuses to intervene, and clemency is
>denied by the Texas executive, James Colburn will be killed on that date.
>
>
>
>
>Conclusion
>
>Amnesty International opposes the death penalty unconditionally, wherever
>it occurs. It believes that every death sentence is an affront to human
>dignity, and every execution a symptom of, rather than a solution to, a
>culture of violence. The organization has the utmost sympathy for the
>victims of violent crime and their families, but believes that the death
>penalty cannot provide a constructive response to their loss.
>
>The execution of James Colburn looms at a time when 111 countries are
>abolitionist in law or practice, and when the international community has
>decided that the death penalty will not be an option in international
>tribunals prosecuting the most serious crimes in the world, including
>torture, genocide and crimes against humanity. James Colburn's execution
>would be one more reminder of how far the USA is behind much of the rest
>of the world on this fundamental human rights issue.
>
>Each year since 1997, the United Nations Commission for Human Rights has
>passed a resolution which, among other things, calls on all retentionist
>countries not to impose or carry out the death penalty against anyone
>with any form of mental disorder. It is clear that the execution of James
>Colburn would directly contradict these resolutions.
>
>The US grassroots advocacy organization, the National Alliance for the
>Mentally Ill, opposes the use of the death penalty against people with
>schizophrenia and other serious mental illness. In 1998, the
>organization's director wrote of "the fundamental disconnection between
>law and science. The legal criteria for evaluating crimes committed by
>persons with severe mental illnesses were developed some 200 years ago.
>Conversely, medical professionals are able to accurately diagnose
>schizophrenia and other serious brain disorders due to remarkable
>scientific discoveries. Scientists also have established that
>schizophrenia impairs mental capacity in many cases. In view of this
>progress, a diagnosis of schizophrenia by a qualified medical expert
>should serve as a reason not to execute a criminal defendant."
>On 25 September 2002, US District Judge William Wayne Justice made an
>address to psychiatrists and others at the University of Texas-Houston
>Medical School. In it the District Judge, who was appointed in 1968 and
>has extensive experience of the Texas criminal justice system, stated
>that the Texas criminal justice system was operating under a "spirit of
>vengeance" in its dealings with the mentally ill. He referred to the case
>of Andrea Yates, a woman suffering from mental illness against whom Texas
>prosecutors recently sought the death penalty for killing her children:
>"Andrea Yates did a monstrous thing, but it not a monstrous human being.
>She is, ultimately, a pathetic and tragic figure". He said: "If we reject
>the moral necessity to distinguish between those who willingly do evil,
>and those who do dreadful acts on account of unbalanced minds, we will do
>injury to these people. But the ultimate injury is the one we will
>inflict on ourselves, and on the rule of law".
>
>Texas should commute the death sentence of James Colburn. It is time for
>the state to find a compassionate response to his crime.
>
>Please take action
>
>Please appeal to Governor Perry to do all in his influence and power to
>stop this execution:
>
>The Honourable Rick Perry
>Governor of Texas
>PO Box 12428, State Capitol
>Austin, TX 78711, USA
>Fax: +1 512 463 1849
>Email from website: GOTOBUTTON BM_2_
>www.governor.state.tx.us/contact/contact_email.htm
>Salutation: Dear Governor
>
>Ask President George Bush to appeal for James Colburn's commutation, in
>line with UN Human Rights Commission resolutions:
>
>George W. Bush
>The President
>The White House
>Office of the President
>1600 Pennsylvania Avenue
>Washington, DC 20500, USA
>Fax: +1 202 456 2461
>E-mail: GOTOBUTTON BM_3_ president at whitehouse.gov
>


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