In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Two previous Virginia death row sentences commuted because of mental illness; Morva scheduled to die Thursday

In recent decades, Virginia governors have granted clemency to two mentally ill inmates facing execution. One of them smeared feces over his cell, and the other was dubbed “Crazy Horse.”

Gov. Terry McAuliffe is considering a request to commute the sentence of William C. Morva, a double-murderer set to be executed Thursday for slayings in Montgomery County committed during an escape in 2006. Morva is said to have grandiose and paranoid delusions.

His lawyers and a court-appointed expert say Morva has long believed that others, including his lawyers, are trying to harm him. A 2008 Richmond Times-Dispatch account of Morva’s sentencing reported that he “looked cheerful, snapping his fingers and smiling when the death penalty was announced.”

In 1999, Gov. Jim Gilmore commuted the death sentence against Calvin Eugene Swann and, in 2008, Gov. Tim Kaine commuted Percy Levar Walton’s death sentence. Both were diagnosed with schizophrenia. Swann died in 2004 of natural causes, while Walton remains an inmate at the Marion Correctional Treatment Center.

Lawyers contend Morva suffers from delusional disorder and, at the time of the slayings, believed his life was in danger at the Montgomery County Jail, where he was being held on attempted robbery charges. They argue the jury was given incorrect information about the nature and severity of his illness.

Morva, who escaped from a deputy who had taken him to a hospital for treatment of minor injuries, shot to death an unarmed hospital security guard, Derrick McFarland. The following day, he killed Eric Sutphin, a sheriff’s deputy who was searching for the escapee. McFarland was shot in the face, Sutphin in the back of his head.

Virginia governors have commuted 9 death sentences

Since the U.S. Supreme Court allowed capital punishment to resume in 1976, Virginia governors have commuted death sentences nine times — most recently in April. Some 112 executions have been carried out in the state over the same period.

The severity of Swann and Walton’s mental illnesses and their diagnoses were in dispute, as is the case with Morva.

When Swann shot a 62-year-old man to death during a 1992 robbery, his record already included robbery, assault and burglary, and he had spent much of the previous 18 years in mental institutions and prisons.

He was convicted of capital murder and robbery and sentenced to death. Gilmore commuted Swann’s sentence about four hours before his scheduled 1999 execution. Swann had suffered from schizophrenia for 25 years at the time of the commutation.

Swann’s behavior at times, Gilmore said in 1999, was “nothing short of bizarre and totally devoid of rationality.”

His lawyers wrote in their clemency petition that when Swann arrived at death row in 1998, “Calvin was continually screaming and flushing his toilet. He was placed in four-point restraints. The next day, he smeared feces all over his cell.”

Gilmore said Virginia Department of Corrections experts confirmed that Swann suffered from severe mental impairment and noted that Swann’s jury was “misinformed” about the fact that on two prior occasions, Swann had been found mentally incompetent to stand trial.

Swann had been committed involuntarily to psychiatric hospitals at least 16 times before he was arrested for the murder, and state employees had diagnosed Swann as having schizophrenia at least 41 times, described him as psychotic at least 31 times and regularly medicated him with eight different antipsychotic drugs.

Nevertheless, the Virginia Supreme Court, citing the evidence presented at Swann’s trial, said there was doubt over whether Swann was schizophrenic. They said one expert who examined Swann concluded he was not schizophrenic. Both the Virginia and U.S. supreme courts rejected Swann’s appeals.

In 2008, Kaine commuted Walton’s death sentences to life without parole. Courts had held that Walton could be executed, but Kaine said he granted clemency because Walton was not mentally competent.

In 1996, Walton murdered an elderly couple and a 33-year-old man who lived near him in Danville. Kaine said there was no doubt Walton was guilty of the crimes, and he did not question the decision to seek the death penalty.

Kaine said that while Walton may have been sane when he committed the murders, the U.S. Supreme Court has held that the Constitution “forbids the execution of those who are unaware of the punishment they are about to suffer and why they are to suffer it.”

Walton was called “Crazy Horse” on death row because of his bizarre conduct and lack of hygiene.

In a prepared statement, Kaine said, “Given the extended period of time over which Walton has exhibited this lack of mental competence, I must conclude that a commutation of his sentence ... is now the only constitutionally appropriate course of action.”

Bob McDonnell, then the Virginia attorney general and later governor, disagreed with Kaine, noting that the U.S. Supreme Court denied Walton’s petition in which he argued that he was incompetent and requested that his execution be stayed.

McDonnell said nothing prevented Walton from bringing evidence of incompetence before the courts where it could be more effectively evaluated.

Experts differed on Walton’s condition over the years. In 2006, Kaine said a clemency petition presented information that Walton had schizophrenia and that his mental state had deteriorated since 2003, the most recent information the courts had to consider at the time in 2006.

A delusional disorder diagnosis along with a family history of schizophrenia

William Morva
William Morva
In a letter to McAuliffe last month, Montgomery Commonwealth’s Attorney Mary K. Pettitt wrote that experts evaluated Morva before the trial and concluded that he had a superior IQ and suffered from a variety of personality disorders, including schizotypal personality disorder with narcissistic features.

A 2015 brief filed by the Virginia Attorney General’s office in the 4th U.S. Circuit Court of Appeals noted Morva’s current lawyers’ claim that a delusional disorder diagnosis along with his family history of schizophrenia would have allowed his trial lawyers to explain to the jury how the crimes were a product of his mental illness.

The state wrote that one expert who testified on Morva’s behalf about schizotypal personality disorder “did exactly that.”

The attorney general argued, “The jury heard substantial and uncontradicted evidence that Morva suffered from mental illness” and that there was a link between his illness and his conduct.”

Dawn M. Davison, one of Morva’s lawyers, said the evidence the jury heard focused primarily on Morva’s behavior before he dropped out of high school and before there was a dramatic deterioration in his mental health.

That was also the focus of information made available to a psychiatrist appointed to the defense for the trial, she said. Without more information about Morva in the years leading up to the slayings, Morva was incorrectly diagnosed with schizotypal personality disorder, his lawyers say.

As a result, the jury was incorrectly told that Morva was not psychotic and not delusional and that he was not clearly out of contact with reality, Davison said.

She said a forensic psychiatrist appointed by a federal judge in 2013 found Morva was suffering from delusional disorder and incapable of rationally communicating with his attorneys.

The psychiatrist, Dr. Donna Schwartz Maddox, wrote in a declaration last month that she understands how someone evaluating Morva with limited information would reach a diagnosis of schizotypal personality disorder. “My diagnosis, however, takes into account that information, which I understand was not provided to the trial expert,” she wrote.

According to Maddox, “A person who is psychotic may be able to function in many ways. He may be oriented to time and place and able to perform chores such as laundry.”

“There are no indications that Mr. Morva is malingering, or feigning symptoms of mental illness. In fact, Mr. Morva does the opposite: he attempts to mask his symptoms so he appears normal,” Maddox added in her 25-page declaration.

She said that, to her knowledge, the Department of Corrections has not attempted to treat Morva and that he refused a psychiatrist’s attempts to evaluate him. The psychiatrist opined that the refusal was an example of narcissism, but Maddox disagrees and believes the refusal was due to his paranoia and mistrust of others.

McAuliffe has been given petitions urging clemency with 31,000 signatures. Among those also supporting clemency are Rep. Gerald E. Connolly, D-11th, six state delegates and five state senators. Linda A. Klein, president of the American Bar Association, sent a letter to McAuliffe expressing concern about the case.

Source: Richmond Times-Dispatch, Frank Green, June 30, 2017

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