Stay of Execution for Jeff Wood: Full Text

The initial constitutional deficiency with what transpired during petitioner’s latest state habeas corpus proceeding is that petitioner was afforded neither court-appointed counsel nor expert assistance to challenge his own competence to be executed.

Instead, the State of Texas insisted an arguably insane death row inmate proceeding without the assistance of court-appointed counsel was required to satisfy the threshold requirement of Article 46.05, i.e., make a “substantial showing of incompetency,” before the inmate was entitled to either assistance of counsel or the assistance of any mental health expert.

With all due respect, a system which requires an insane person to first make “a substantial showing” of his own lack of mental capacity without the assistance of counsel or a mental health expert, in order to obtain such assistance is, by defintion, an insane system. . . .

It is inconsistent with the mandates of both Panetti and Ford for the State of Texas to deny an indigent death row inmate asserting a claim that he is incompetent to be executed the assistance of counsel until said inmate first satisfies arcane pleadings requirements so intellectually challenging they test the skill of even the most seasoned attorney.

Petitioner’s motion for stay, particularly the sections outlining petitioner’s allegedly delusional statements to mental health experts near the time of petitioner’s trial and his subsequent statements to his state and federal habeas counsel, at least arguably suggest petitioner lacks a rational understanding of the causal link between his role in his criminal offense and the reason he has been sentenced to death.

At their core, petitioner’s statements to these individuals indicate an inability or unwillingness on petitioner’s part to fully comprehend the fact he bears criminal responsibility, and can be punished, for the fatal shooting of Kris Keeran by his accomplice. As explained in Panetti, a prisoner’s inability to make the psychic link between his offense and the punishment to be imposed upon him may potentially render the prisoner incompetent to be executed for Eighth Amemdment purposes.

Mere confusion over the complexities of the Texas law of parties does not a delusion make. However, petitioner’s federal habeas counsel suggests petitioner has made numerous statements demonstrating a complete and fundamental lack of comprehension as to how capital punishment can be imposed upon petitioner for a crime (the fatal shooting of Keeran) another individual committed.

. . . .

. . . Thus, there is evidence before this Court suggesting petitioner’s alleged refusal to comprehend, or perhaps possibly to admit, the connection between his role in the fatal shooting of Kriss Keeran and the death sentence imposed upon him may be more demonstrative of petitioner’s antisocial personality than of a true mental illness. However, where petitioner was deprived of not only the assistance of a mental health professional to develop his Panetti/Ford claim in state court but also the assistance of court-appointed counsel, any adjudication of the merits of the petitioner’s incompetence claim at this juncture is premature.

. . .

. . . Thus, fundamental due process requires, at a minimum, that an indigent defendant asserting a non-frivolous Panetti/Ford claim be assisted by counsel in any hearing before the Court.

. . .

Petitioner requests appointment of a mental health expert to assist him in developing and presenting his Panetti/Ford claim herein. This Court finds petitioner is entitled to such assistance because the state court denied him any opportunity whatsoever to present expert mental health evidence to that court when it denied petitioner’s motion requesting appointment of counsel.

Petitioner’s most recent state habeas proceeding was so lacking in fundamental due process protections it is incumbent upon this Court to afford petitioner a fair hearing in accord with fundamental fairness in which petitioner has a meaningful opportunity to be heard on the merits of his Panetti/Ford claim.

. . .

. . . By seeking relief under Article 46.05 from the state courts, petitioner statutorily waived any claim of privilege with regard to his medical or mental health records. . . .

Succinctly, the legal basis for this Court’s decision herein rests squarely on the state trial court’s refusal to afford the allegedly insane petitioner the most fundamental of the due process procedural protections mandated by the Supreme Court’s holding in Panetti, i.e., the state trial court’s denial of petitioner’s request for legal representation.

Had the state trial court granted that request, along with the other procedural rights recognized in Panetti, this Court’s eleventh-hour intervention in petitioner’s execution might have been unnecessary.

Paragraph breaks added by editor for readability.

From an order by Judge Orlando L. Garcia, 12:26pm, Aug. 21, 2008, San Antonio (PDF format 800 kb) Note: may not work with Firefox.–gm

Also See: Petitioner’s Motion


TDCJ No. 999256 §
Petitioner, §
-VS- § CIVIL NO. SA-01-CA-423-OG

Texas Department of Criminal Justice,

Correctional Institutions Division, §
Respondent. §




Petitioner-Movant Jeffery Lee Wood asks this Court to stay his execution currently sched
uled for August 21, 2008 after 6:00 p.m. to allow him to investigate, prepare and present a claim that he is incompetent to be executed pursuant to Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v. Quarterman, ___ U.S. ___, 127 S.Ct. 2842 (2007). Mr. Wood can make a colorable showing that he is not competent to be executed. Because his Ford claim is neither frivolous nor designed to delay his execution, he is entitled to a stay. See id. at 2854.

I. Background

On March 2, 1998, Mr. Wood was convicted and sentenced to death in the 216th District Court of Kerr County on a transfer of venue to Bandera County. His conviction and sentence were affirmed on direct appeal. Wood v. State, 18 S.W.3d 642 (Tex. Crim. App. 2000). No petition for certiorari was filed. Mr. Wood’s state habeas corpus application was denied on May 9, 2000. Ex parte Wood, No. WR-45,500-01 (Tex. Crim. App. 2000) (unpublished). Mr. Wood filed his federal petition for writ of habeas corpus on January 31, 2002, which was denied by this Court. The United States Court of Appeals for the Fifth Circuit affirmed the denial of the petition. Wood v. Quarterman, 491 F.3d 196 (2007), cert. denied, 128 S.Ct. 1087 (Jan 14, 2008).

Mr. Wood is scheduled to be executed on August 21, 2008. On August 14, 2008, Mr. Wood filed a motion in state court requesting appointment of counsel and funding for a mental health expert to investigate and prepare an “Article 46.05 motion.” See Motion for Appointment of Counsel and Request for Prepayment of Funds to Retain Mental Health Expert to Assist Him in Preparing Article 46.05 Motion (attached as Exhibit 1) [hereinafter “Motion”]. Under state law, an Article 46.05 motion raises a claim of incompetence to be executed under the Supreme Court’s decisions in Ford and Panetti. He also asked the state court to withdraw the order scheduling his execution to allow for sufficient time to investigate and prepare the motion. The trial court denied the requests (order attached as Exhibit 2). Mr. Wood appealed and the CCA denied Mr. Wood’s requests (order attached as Exhibit 3).

II. Colorable Showing That Mr. Wood Is Incompetent to Be Executed

Mr. Wood has not yet had access to the tools necessary to present sufficient proof that he is incompetent to be executed. Nevertheless, undersigned counsel can at this time make a colorable showing that Mr. Wood is not competent to be executed.

1. Pecan Valley Elementary School, Grades One through Five: 1981-1985

From 1981 through 1985, Jeffery Lee Wood attended grades one through five at the Pecan Valley Elementary School located in San Antonio, Texas. Due to behavioral abnormalities, Jeff was tested and his family was told he suffered from hyperactivity. (Motion, Exhibit A). Despite a request from the school and Mr. Wood’s family, the child’s pediatrician advised against taking any further action. Id. Accordingly, young Jeff did not receive treatment for this disorder.

2. Sul Ross Middle School, Grade Six: Evaluated April of 1987

Jeff attended junior high classes at Sul Ross Middle School, also located in San Antonio, Texas. When Jeff was in the sixth grade, in April of 1987, school officials referred Jeff for psychological evaluation “due to his short attention span and hyperactivity.” (Motion, Exhibit A). With respect to the competency issue in this case, Jeff was described as “a youngster who exercises exceptionally poor judgment which, along with achievement failures, further results in negative consequences.” Id. The school psychologist who performed this testing explained:

This, in turn, fosters self-doubt and recrimination. Jeff is not able currently to pull himself out of this dilemma by using productive problem solving strategies since self-introspection is so painful, and an objective wholistic [sic] picture of reality is so difficult for him to attain. His subjective perceptions seem to be fragmented and filled with morbid, threatening elements. He seems to feel a strong drive to retreat from emotional stimuli and emotionally laden thoughts; if unable to do so, perceptions of reality become even more distorted. Furthermore, Jeff is unable at this time to reach out to others for support since interpersonal interactions can be particularly threatening to him. This is not to say that he is not capable of developing emotional ties, but an egocentric orientation is needed currently in order to maintain at least a minor degree of ego integrity.

Id. at 5 (emphasis added). This school psychologist summarized that Jeff suffered from a severe overanxiety disorder and was “a very troubled youngster who is at risk for regressing to even a less functional state.” Id. Jeff was thus diagnosed as emotionally disturbed and placed in special education classes during the remainder of his time at Sul Ross Middle School.

3. John Jay High School, Grade Nine: Evaluated May of 1990

Three years later, when Jeff was attending John Jay High School in San Antonio, school officials again had Jeff evaluated because his teachers became “concerned about Jeff’s limited skills in reading, writing, attention, and organization.” (Motion, Exhibit B). Jeff continued to function “within the low average range of mental ability” and could not “sustain intention.” Id.

Jeff’s reading level was at the “minimal level for needs of adult literacy.” Id. The school psychologist concluded, “Jeff demonstrates significant behavioral and emotional difficulties in attention span and organization.” Id.

4. Competency Evaluation of Dr. Roman, June of 1996

In June of 1996, Dr. Michael A. Roman, a neuro-psychologist, evaluated Mr. Wood to determine whether he was competent to stand trial for the crime of murder of which he now stands convicted and for which he faces the death penalty. (Motion, Exhibit C). As an initial matter, Dr. Roman made the following significant observation:

During the interview, Mr. Wood seemed to believe that his statements were true, no matter how outrageous they seemed. He was quite paranoid and suspicious of other people, including his wife whom he referred to as his ex-wife. While some of his more outrageous comments were likely fabrications, he seemed to believe them wholeheartedly in an almost delusional manner.

Id. at 3. The doctor also confirmed Mr. Wood’s previous learning problems. He explained:

The WRAT-4 was used as a brief screening measure for basic academic achievement. Single word recognition and spelling scored well below average for age. Mr. Wood’s reading scored at a 5th grade level while spelling scored at a 4th grade level. Math was somewhat better, with basic math calculations scoring withi
n the low average range at an 8th grade level. These results are consistent with the learning problems he demonstrated throughout elementary school and high school and do not appear to represent a decline in functioning.

Id. at 4. Later in his report, Dr. Roman again verified Mr. Wood’s delusional thought process and made the following observations:

Mr. Wood’s emotional functioning is far more complicated. He appears to have failed in many things throughout his life. As a function of this, he has developed very well ingrained defense mechanisms to attempt to cope with his low self-image, depression, and anxiety. There is evidence that he experiences negative emotion just as normally as anyone his age. However, he tends to actively deny these feelings and projects a very sturdy “bad boy” image. He seems so threatened by his personality weaknesses that he is unwilling and perhaps even unable to admit to even minor faults. While it is not unusual for people accused of a serious crime to deny responsibility and fabricate their stories, it appears that this simple explanation does not apply to Mr. Wood. His denial of responsibility is totally delusional and he is unwilling to explore even the possibility that he must reconsider his beliefs. This is complicated by his mistrust of others and the degree of paranoia associated with this mistrust.

Id. at 5 (emphasis added).

5. Competency to Stand Trial

In May of 1997, a jury determined Mr. Wood was incompetent to stand trial. (Vol. 7, pp. 68-77). Dr. Michael A. Roman testified at this hearing. (Vol. 5, p. 127). Dr. Roman’s initial observation establishes his full knowledge of Mr. Wood’s psychological make-up. When asked to explain why Mr. Wood was incompetent to stand trial, the doctor explained:

I believe the most succinct way that I could explain that is that I believe that many things about Mr. Wood’s personality organization, if you will, his history of emotional difficulties, as documented through his school records, his prior patterns of responses to other circumstances in which he has been threatened, and analysis of his thinking ability and other pertinent issues related to facts in the case, indicate that he simply does not acknowledge the possibility that he could in any way be found responsible for any aspect of this crime and, therefore, has been generally unwilling to accept the need to assist or the advantage of assisting in his defense.

Furthermore, I believe that when it is pressed on him that he must go forth and assist in his defense, he takes it as a very personal threat and what I have described as extremely paranoid thinking, makes him believe that any individual so pressing him is a part of what he believes is a conspiracy against him to frame him into accepting wrongdoing for something with which he believes he was not involved.

Id. at 137-38. He went on to explain why Mr. Wood did not have the ability to assist in his defense:

I believe it comes from several sources. In either sense, I believe that Mr. Wood has a delusional system, an inability to grasp the reality surrounding the issues specific to this case, his role in it, in the crime, as well as other things that present a direct threat to his own well-being, his own sense of self.

I believe that that manifests in extremely paranoid thinking, where he believes that anyone who suggests that he would be responsible is out to get him, and I believe that at that point he loses his rational ability to be able to accept and understand beyond what you would expect from someone who simply would not argue with that position. He is in my opinion unable to agree with that position at the present time.

Id. at 138-39 (emphases added).

Dr. Roman stated it was his “belief that in issues that specifically threaten [Mr. Wood’s] sense of . . . the good guy that he believes himself to be, he is absolutely unable to maintain enough grasp of reality to be able to follow you [referring to Mr. Wood’s attorney] though a line of thinking, and I believe that it’s in that vein that his delusional system would be manifest.” Id. at 139-40. Finally, and critical to the jury’s ultimate finding of incompetency, Dr. Roman observed the relationship between stress and Mr. Wood’s delusions:

I think that yes, of course, stress could make [Mr. Wood’s delusional system] worse, but I think it greatly depends on the type of stress that’s applied. It’s my opinion that he could be under tremendous stress as long as it didn’t threaten him at a more personal sense of self basis, and that would not necessarily intensify his delusions. I believe it’s only when there is a direct threat to him, and not even directly necessarily personal safety outcome, simply a threat to his perceptions of his own image of himself is when the stress would be an issue.

Id. at 142-43.

At this hearing, the State called a psychiatrist and lay witnesses to testify that Mr. Wood was competent to stand trial. (Vol. 5, pp. 194-220); (Vol. 6, pp. 6-34). The State argued its lay witnesses’ “common sense” approach to competency should be given more weight than Dr. Roman’s opinion. The jury did not agree and found Mr. Wood incompetent to stand trial. The Court ordered him committed to Vernon State Hospital for a period not to exceed eighteen months. (Vol. 6, pp. 68-77).

Mr. Wood was admitted to the hospital on May 27, 1997. He was discharged 22 days later, without having received any medication or treatment. The discharge decision was based on his mastery of competency training materials that did not test Mr. Wood’s ability to communicate with his lawyer with a reasonable degree of rational understanding about his case. Indeed, the records from Vernon State Hospital reflect that the professionals routinely noted difficulty with Mr. Wood’s ability to communicate rationally, particularly with respect to his case.

At the second competency trial, Dr. Roman testified again after having evaluated Mr. Wood a second time. He still believed Mr. Wood to be incompetent to stand trial. (Vol. 7, pp. 195-96). After the conclusion of the hearing–during which Mr. Wood’s counsel were unable to evaluate or cross-examine the State’s witnesses about the raw data from evaluations performed by Vernon staff–Mr. Wood was found to be competent to stand trial.

6. 1999 Competency Evaluation of Mr. Potter

Mr. Wood’s delusions persisted after conviction. In 1999, Mr. Gordon Potter, a licensed therapist, evaluated Mr. Wood. (Motion, Exhibit D). While the evaluation was done without an imminent execution date, Mr. Potter nonetheless opined that Mr. Wood’s “beliefs are so distorted that it is unlikely that he believes his d
eath is imminent.” Id.

7. Mental Health in Prison

Mr. Wood’s paranoia, delusions, and faulty reality testing persisted after he was sent to death row. Records reflect that he was sent to the Jester IV Unit—a psychiatric facility—on at least two occasions in 2000 as a result of suicidal threats and suicide attempts. While there, Mr. Wood complained of auditory hallucinations. Mental health assessments throughout his stay at the Polunsky Unit reflect continuing mental health problems in the very area Dr. Roman had identified as rendering him incompetent to stand trial.

One mental health assessment from 2004 noted, “Pt. also stated he is paranoid of the ‘law.’” (Motion, Exhibit E). Another assessor wrote that same year, “Pt. displays some paranoia. He reports security is continually ‘messing with me.’ When asked what he does in response, he was vague and took no responsibility.” The assessor noted that Mr. Wood’s reality testing was “distorted.” (Motion, Exhibit F).

Two weeks later, a different mental health professional wrote, “Patient reported: He is doing ok, is depressed, is upset at the things [a mental health professional] had to say about his criminal thinking as he cannot identify himself as a criminal or wanting to hurt anyone.”

(Exhibit G). Three days later, an evaluator observed,

Observations: Pt. appears anxious/restless. He has a current case pending and he reports that he is afraid of the result, he said, “I don’t want to go to J-Pod.” Pt. had already taken and reviewed a PAI [Personality Assessment Inventory] with his former therapist. The results were invalid. Discussed the reasons why the test could have been invalid. Pt. presets with paranoid thought patterns. Confronted about his “all or nothing” thinking and how it contributes to some of his problems. Pt. takes very little responsibility for his actions, and becomes defensive when confronted. Discussed dysfunctional relationship with his family. ***

A: Impression: Pt. exhibited a high level of restlessness along with paranoid patterns of thought. May benefit from assessment from G. Fong PA for psychotropic medication.

(Exhibit H).

8. Present Observations of Mr. Wood’s Competency to Be Executed

On July 22, 2008, undersigned pro bono counsel interviewed Mr. Wood with respect to his impressions of his pending execution. The interview took place on death row at the Polunsky Unit of the Texas Department of Corrections facility located in Livingston, Texas.

During this conversation, Mr. Wood reiterated his belief that the state trial judge in his case is corrupt. Mr. Wood declared that the defense team can take advantage of the Judge’s corruption if we offer the jurist “$100,000 in tax free money.” Mr. Wood is convinced such action will lead to his release and deportation to Norway, where his wife resides. Significantly, Mr. Wood is not simply confident that the Judge will take a bribe. Rather, he “declares” a “dismissal will happen if we get the right money to the Judge.”

Mr. Wood expanded on his theories as to how this case can be dismissed. He stated that if Mike DeGuerin, Esquire, or Dick DeGuerin, Esquire, were to approach the Judge on his behalf, the case against Mr. Wood would be dismissed because the Judge and these criminal defense attorneys are members of the Freemasonry fraternal organization. However, Mr. Wood states that he does not want “anyone to know the Mason angle” because the Freemasons would kill him. Mr. Wood states he is “so sure of this Mason angle” and its success that there is “no thinking to it.” Indeed, he declares this “is not just my belief–I know it will happen.”

Mr. Wood also believes that once he is released from prison he will receive $50,000 per year from the government. Mr. Wood said he is willing to give this money to the Judge. Once again, Mr. Wood reiterates that in return he will be permitted to live in Norway.

Mr. Wood additionally believes Kinky Friedman, the American satirist and sometimes political candidate, can help with Mr. Wood’s release. Mr. Wood said this is because Mr. Friedman’s ranch property backs-up to land which Mr. Wood believes Mr. Wood owns, and Mr. Wood used to “feed Kinky’s horses.” Mr. Wood also stated that “if Kinky had won the election, Kinky would have let me go free.”

During this conversation, Mr. Wood stated, as he has several times in the past, that he has no idea why he is being executed. He stated this is so because he did not kill anyone. Mr. Wood recollects he was last sent to the Jester Unit, a mental health facility owned and operated by the Texas Department of Corrections, three to four years ago. Mr. Wood related that he has tried to commit suicide two or three times, and has been sent to the Jester Unit for evaluation and treatment three or four times. Mr. Wood also believes he was “kicked out” of the Vernon State Hospital because administrative personnel knew he was “going to have sex with a blonde.”

Undersigned pro bono counsel has represented Mr. Wood for roughly nine years. Counsel has noted that, to Mr. Wood, the above statements are the sworn truth. Many of these delusional statements have been made to undersigned counsel before. Mr. Wood makes these statements without prompting and they are usually provided during long monologues. Mr. Wood’s delusional beliefs are true to him and always presented in grandiose fashion.

III. A Stay of Execution Is Required to Enable Counsel to Develop the Evidence in Support of a Ford Claim.

Mr. Wood seeks a stay of execution so counsel may investigate the grounds for filing an application for writ of habeas corpus raising a claim that Mr. Wood is incompetent to be executed.

A. A Ford Claim Is Ripe for Adjudication and Could Not Have Been Presented in an Earlier Petition

Mr. Wood seeks to investigate the grounds for filing a petition for writ of habeas corpus raising an allegation that he is incompetent to be executed. Mr. Wood could not have raised this claim in his initial habeas corpus petition because the claim became ripe for adjudication only once Mr. Wood’s execution became imminent. Panetti, 127 S.Ct. at 2852. Thus, an application raising a Ford claim is timely and would not be subject to the successive petition requirements of 28 U.S.C. § 2244(b). Id. at 2855.

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