May 18, 2004, 1:07AM Parole board votes to stop execution Perry to have last word on mentally ill killer's fate By MIKE TOLSON Copyright 2004 Houston Chronicle In the rarest of moves, the Texas Board of Pardons and Paroles voted 5-1 Monday to commute the death sentence of mentally ill inmate Kelsey Patterson, who is scheduled for execution this evening. The board's recommendation of a life sentence, or at minimum a 120-day reprieve, goes to Gov. Rick Perry for action. The recommendation is under review and a timely decision will be made today, a spokesman for the governor's office said. "I can still hardly believe it, but I'll take it," said Patterson's attorney, Gary Hart. "I'm delighted, and I'm keeping my fingers crossed that Governor Perry will continue to do the right thing and not just because of these issues of Kelsey's mental competency that we are currently litigating but all of Kelsey's issues. I believe the board was influenced by the totality of the picture." • • • • • "I believe the board was influenced by the totality of the picture." Gary Hart, Kelsey Patterson's attorney • • • • • That picture includes a long history of schizophrenia and three previous aggravated assaults that were never prosecuted because of Patterson's delusional state at the time they occurred. However, when he shot to death a businessman and his secretary in his hometown of Palestine in 1992, he was prosecuted for capital murder and sent to death row despite the absence of motive. Hart claims Patterson, 50, is delusional and not competent for execution. The 5th U.S. Circuit Court of Appeals on Monday rejected his request for a stay. Last-minute appeals are still pending with the Texas Court of Criminal Appeals and the U.S. Supreme Court. Board recommendations for commutation are exceedingly rare in capital cases. The most common reasons are troubled prosecutions, evidence of innocence or changes in case law. In March, for instance, Robert Smith received a unanimous vote to commute when a Harris County court determined he was mentally retarded -- the only such recommendation presented to Perry regarding a capital defendant. The vote, like Perry's consent, was a foregone conclusion because the U.S. Supreme Court banned the execution of the retarded in 2001. Commutation on humanitarian grounds is all but unheard of. The overriding issue in Patterson's application to the board was his extreme mental condition, which has left him suffering from delusions for most of his adult life. "At the time that he killed Louis Oates and Kay Harris, Patterson was acting under the influence of a mental illness that rendered him incapable of conforming his conduct to the law," Hart wrote in Patterson's application. "It does not serve either the retributive or deterrence goals of capital punishment to put him to death for those acts. He is far less culpable, because of his mental illness, than the average murderer, and the prospect of the death penalty would not have quelled the delusions that fueled his criminal act." The board, as is its custom, issued no explanation for its recommendation. For many years Patterson has said the only reason he shot Oates and Harris was because local officials planted devices in his body to control his actions. They forced him to commit this crime, he insisted, as their way of doing away with him. Mental illness, even severe as in Patterson's case, is not a bar to execution. Texas has executed several mentally ill inmates. The law requires only that a condemned prisoner understand that his execution is imminent and the reason for it. Hart said death row warden James Jones approached Patterson on May 4 and asked him to complete paperwork directing the prison what to do with his remains and the leftover funds from his inmate trust account. Patterson refused, telling Jones he was not eligible to be executed because he has obtained amnesty. The defense attorney has tried without success to persuade various courts to grant a Patterson a stay, contending he is incompetent to be executed. In a letter to Perry requesting a 30-day reprieve, Hart pointed to recent visits to Patterson by a member of the Board of Pardons and Paroles and by a spiritual counselor from the Salvation Army. On both occasions, Patterson told his visitors that he would not be executed. Kathryn Honaker Cox, a Salvation Army major who visits regularly with death row inmates, reported numerous examples of delusional behavior and said in one instance Patterson stood in the day room where visits are conducted and for an entire hour held his arms outstretched as if he were flying. Cox also said Patterson's sisters tearfully related to her last April that he would not sit down to visit with them because he refused to believe they were really his sisters. He claimed they were spies sent to get information about him, Cox said in an affidavit. Patterson did meet with his sisters on Friday. They said he was seriously delusional and believed his plate of beans was talking to him. Patterson also told them that day he had been talking to a woman whom they knew had died three years ago. "This is not the first time Kelsey has talked to his beans or the dead," Hart said. Patterson was diagnosed with schizophrenia in early adulthood. When unmedicated and living on his own, he had a tendency to become explosively violent. On three separate occasions, he shot co-workers without provocation and hit another across the head with a two-by-four. He was sent to state psychiatric facilities after each of the assaults and never was formally prosecuted because of his delusional state at the time of the assaults. Patterson was seen last by mental health experts in 1999. A psychologist retained by Hart and a psychiatrist appointed by a federal judge agreed that Patterson was seriously ill and delusional, but neither could determine his competency for execution at the time because Patterson would not agree to a full evaluation.