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Wilcher case may be part of larger Supreme Court death penalty concerns

The capital murder case of Bobby Glen Wilcher, whose execution was halted by the U.S. Supreme Court this past week, contains elements the justices are destined to address, say some longtime court watchers.

Past cases show the justices are interested in exploring questions of whether to execute the mentally ill and when to cut off a condemned inmate’s appeals, said Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center in Washington.

“There’s always the danger of someone jerking the courts around, saying I do (want to die) or I don’t, switching off and on,” Dieter said. “This may have been at least enough (for the court) to say, ‘All right, he signaled his desire to appeal … you don’t have to spend a lot of time on this, but you at least should take his word for it.’”

A month ago, Wilcher told a federal judge he wanted to drop his appeals. A July 11 execution date was set. Wilcher himself then filed an appeal with the 5th U.S. Circuit Court of Appeals, saying he had changed his mind. The 5th Circuit declined to stop the execution.

On Tuesday night, the Supreme Court temporarily stopped the execution about a half hour before Wilcher was to die by lethal injection at 6 p.m. The stay was issued about 6:27 p.m.

Leonard Vincent, an attorney for the Mississippi Department of Corrections, said the 5th Circuit, in denying a stay, dismissed questions about Wilcher’s mental illness and whether the inmate knowingly gave up his appeals.

“We don’t know what was the Supreme Court’s thinking,” Vincent said about a reason for the stay.

Corrections Commissioner Chris Epps said Wilcher was despondent and cried when told of the stay.

“I’ve never seen an individual so upset that he didn’t get executed,” Epps said.

The justices issued what Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation in Sacramento, Calif., called a “boilerplate” stay, one in which they usually do not comment on the case.

Scheidegger said the question for Wilcher appears to be whether he knew what he was doing in seeking to drop his appeals.

“It is certainly well established that the mentally competent person can drop his appeals if he chooses to,” Scheidegger said. “It doesn’t take very long in most cases to determine whether a person is mentally competent. It’s a fairly low threshold of mental ability … you know what you’re doing and you choose to do it.”

Dieter said the lower courts might have acted hastily in ruling that Wilcher had no appeals or filed them too late.

“It’s true he was waiving his appeals but the Supreme Court might want to clarify that even at the 11th hour, a person can change their mind … and the courts should respect that,” Dieter said. “The Supreme Court may feel that is important enough to hear a case like that to make it clear.”

Wilcher’s attorney, Cliff Johnson of Jackson, claims his client is mentally ill and questions whether Wilcher is capable of making a decision to drop his appeals. Wilcher takes medication for a bipolar disorder, a chemical imbalance which some doctors say causes people to experience extreme highs on the one pole, and depression on the other.

Mississippi Attorney General Jim Hood said he suspects the stay was prompted by confusion over whether Wilcher wanted to waive his appeals.

“Here this guy waived his appeals, his attorney said he wasn’t competent, I suspect they said, ‘Let’s slow this down just a minute,’”Hood said.

Hood said Wilcher was lucid when he told the district judge that he wanted to drop his appeals.

“We expect the Supreme Court to find this guy is competent to have made that decision,” said Hood, who believes Wilcher’s execution could be rescheduled for as early as November.

Scheidegger said bipolar is a real disorder unlike some other mental illnesses.

“But whether it makes you incapable of exercising free will, I am very skeptical,” he said. “The broader idea that anything that has a code in the psychiatrist’s manual constitutes an exemption from capital punishment isn’t going to fly. Half the people in prison have a so-called anti-social personality disorder, which is why they are in prison.”

In 2002, the Supreme Court ruled it is unconstitutional to execute the mentally retarded. The justices have not extended that ruling to the mentally ill. Few expect the court would use Wilcher’s case to address that issue.

“I don’t suspect the court is ready to take on that whole issue of the mentally ill and the death penalty similar to the same way they did mental retardation, but someday they might,” Dieter said.

Wilcher, now 43, was sentenced to death for the 1982 slayings of two Scott County women. After meeting them at a Forest bar, Wilcher persuaded the women to drive him home and diverted them down a deserted road.

Their blood-soaked bodies were found sprawled along the muddy banks of the dirt road. Each woman had been stabbed and slashed more than 20 times, according to authorities.

Wilcher’s case has gone through two trials, two re-sentencing hearings and countless appeals.

The Supreme Court has space left on its fall calendar for appeals. Justices have agreed to hear only one death penalty case so far.

The Supreme Court said it would consider this fall whether a California man’s death sentence should be reinstated. The 9th U.S. Circuit Court of Appeals in San Francisco had thrown out Fernando Belmontes’ sentence for killing a 21-year-old woman, Steacy McConnell, with a metal dumbbell bar in 1981.

At issue in the appeal is whether jurors were properly told to consider mitigating evidence that justified sparing his life. California lawyers argued that the appeals court decision could jeopardize other old death-row cases in that state.

If the justices decide to hear the Wilcher case, it could be nine months to a year before a decision is made.

When a decision comes down, Hood said he will go back to the Mississippi Supreme Court for a new execution date.

Wilcher’s position in the order of condemned inmates exhausting their appeals could have changed by then. Mississippi has 70 people on death row.

The attorney general’s office said 26 death-row inmates have appeals pending in the U.S. District Courts and decisions could come at any time.

The case furthest along is that of Gerald James Holland. Holland, now 68, was convicted of capital murder and sentenced to death in 1987 in Harrison County in the slaying of 15-year-old Krystal King. His appeal was turned down by the nation’s high court in 2005.

The last person executed in the state was John B. Nixon Sr., 77, on Dec. 14, 2005.