Fifth Circuit Senior Judge Patrick Higginbotham authored the majority opinion ordering the appointment of counsel and funding for a mental health expert in schizophrenic death row inmate Scott Panetti's long-running case to avoid execution.

The U.S. Court of Appeals for the Fifth Circuit has ordered a new lawyer and additional mental health expert funding for Scott Panetti, a schizophrenic Texas death row inmate who represented himself at trial wearing a cowboy costume and called Jesus Christ as a witness.

Panetti has a long history of schizophrenia and institutionalization and was charged with capital murder for killing his wife’s parents in front of his wife and his 3-year-old daughter. He insisted on representing himself in a bizarre 1995 trial in Kerrville that resulted in his conviction and death sentence.

Panetti obtained pro bono lawyers on appeal who have repeatedly argued that he is too incompetent to be executed. However, Texas courts have repeatedly found that Panetti understands the reasons for his execution and is therefore competent.

The U.S. Supreme Court granted review to Panetti’s case in 2007 and ruled in favor of his attorneys’ arguments that a defendant must have a “rational understanding” of why he is being executed, and not simply be aware of the state’s reasons for carrying out the execution.

But a Texas federal court later found that Panetti had such an understanding and denied his request for additional funding for a new lawyer and for a mental health expert to prove his incompetence — rulings he appealed to the Fifth Circuit.

In a June 11 decision in Panetti v. Davis, Fifth Circuit Senior Judge Patrick Higginbotham wrote that the district court should have appointed Panetti another lawyer and a mental health expert, and vacated its ruling that Panetti is competent to be executed. However, Higginbotham declined to rule on whether Panetti is competent, remanding that question back to the district court for “another chapter in this judicial plunge into the dark forest of insanity and death directed by the flickering and inevitably elusive guides.”

“We need not and do not treat the merits of Panetti’s claim that he is incompetent to be executed — that is for the district court after Panetti has been afforded the opportunity to develop his position,” Higginbotham wrote, noting that the Panetti’s case is taking death penalty competency evaluations into “uncharted waters.”

“This opinion does not undertake to resolve these uncertainties; it rather insists that their resolution proceed with fully armed counsel on both sides — the essence of due process,” he wrote.

Judge Priscilla Owen dissented to the majority opinion, noting that while she agreed Panetti is entitled to appointed counsel at every step of his ongoing proceedings, the failure to appoint compensated counsel is not a dispositive issue and did not warrant a stay of execution.

“The panel’s majority opinion obfuscates the core inquiry and, I submit with great respect, does not objectively consider the record or the actual bases for the district court’s conclusion that Panetti has not made a sufficient showing to require the appointment of experts in order to litigate, once again, whether he is competent to be executed,” Owen wrote.

Greg Wiercioch, a University of Wisconsin Law School professor, and Kathryn Kase, a Houston attorney who represent Panetti pro bono, said they were pleased with the decision.

“Mr. Panetti has not been evaluated by any mental health experts since 2007 and his severe mental illness has only worsened while in prison,” Wiercioch and Kase said in a prepared statement. “We are confident that when the lower court is presented with all the evidence, it will find that Mr. Panetti, a schizophrenic man who insisted on representing himself at trial and attempted to subpoena the Pope, John F. Kennedy, and Jesus Christ, is not now competent for execution.”

“Ultimately, commuting Mr. Panetti’s sentence to life in prison without parole would keep the public safe and affirm our shared beliefs in a humane and moral justice system,” they said in the statement.

A spokesperson for the Texas Attorney General’s Office, which is advocating for Panetti’s execution, did not immediately return a call for comment.