Upside-down world of the death penalty debate

Russel Weston believes the ripening of corn reverses time. He also contends that his tooth was implanted with a device that allows communication with the Russian embassy through a system based on rubies and satellites. In the old days, between bouts of raving, he would sit rocking on the porch of his Montana home because it made him less of a target.

Weston is a paranoid schizophrenic, and the US government would like to put him to death.

He believed that the override console for the "Ruby Satellite System" was under the floor of the US Capitol. In July 1998 he went to Washington to find it. Two guards got in his way and so he shot them dead before taking three bullets that nearly killed him, too.

But Weston is living in a world of madness, trapped by a legal system that offers him the Hobson's choice of spiralling insanity, or sanity at the possible price of his life. His lawyers have chosen for him - insanity - embroiling themselves in an ethical minefield whose outcome will have profound legal consequences for the treatment of the insane.

Ever since his arrest they have fought a battle in the courts to prevent state attempts to treat Weston with drugs that might make him competent to face trial for capital murder and then, probably, the death penalty.

A forensic psychologist, Sally Johnson, appointed by the court, has reported that he is clearly incompetent to face trial now, adding, however, that "with adequate treatment with anti-psychotic medication, there is a significant likelihood that competence can be restored".

The problem is that although Weston is deeply delusional, the level of planning and awareness demonstrated in his deadly 750mile car trip to the Capitol may make it very difficult for his defence team to convince a court, once he is put on trial, that he meets the high standard required of an insanity plea.

At that stage the onus is on the defence, and this country has shown itself all too willing to execute the mentally unbalanced. Better, his defence team argues, to keep him away from the court even if that means a life in isolation and an ever-deeper descent into madness.

The question has now been debated by several courts, one of which is to rule again shortly on whether the state can force him to take medication. And one judge has asked if the effect of the drugs in any case would be to present to the jury a man very different from the one who had attacked the Capitol?

"Are his lawyers acting immorally?" asks Prof Brice Winick, a University of Miami legal authority on the rights of the mentally insane. "No," he says. "They are trying to save his life. Does it come at the cost of his emotional wellbeing? Perhaps it does."

Weston's lawyers say they will lift objections to enforced medication if prosecutors will back off from seeking the death penalty. But two federal officers are dead, and that makes the option politically sensitive.

The saga is only the latest in the strange upside-down world of the US death penalty debate. There is growing support here for a moratorium on executions, prompted in part among supporters of the death penalty by acceptance of the evidence that there have been serious miscarriages of justice.

Charlotte, North Carolina, recently backed the idea, proposing it as a temporary measure while steps are taken to ensure that capital punishment is administered fairly. The moratorium campaign is now backed by two dozen other municipalities, including Philadelphia, Atlanta, Baltimore and San Francisco.

Illinois this week announced new mandatory court rules to deal with the problem of incompetent lawyers. In future two lawyers will be appointed for every poor defendant in a death penalty case.

To take such a case a lawyer must be certified by the State Supreme Court as a member of the Capital Litigation Trial Bar. Lead lawyers must have five years of experience in court and eight felony jury trials, including two murder trials.

The new rules are the result of nearly two years of study by a committee of 17 judges. The committee began work in 1999 after Anthony Porter, following 16 years on death row, came within two days of execution before he was exonerated by a group of Northwestern University journalism students. The Porter case and some 13 other wrongful capital convictions led to the current Illinois moratorium on executions.

A Chicago Tribune examination of death penalty cases in Illinois found that 33 defendants sentenced to die had been represented by lawyers who had been disbarred or suspended.

Such concerns are exemplified by a hearing this week before a New Orleans court which must answer the question: does a defendant's right to have a lawyer extend to having one who stays awake throughout the trial?

In a rare move, all 14 active judges of the US Fifth Circuit Court of Appeals met to reconsider a highly controversial ruling issued in October by a sharply divided three-judge panel of the court. The panel held that Texas is entitled to execute convicted murderer Calvin J. Burdine, even though his attorney had slept through substantial portions of his 1984 trial in Houston.

The two judges in the majority said that Burdine had failed to prove that he was prejudiced by his lawyer's frequent naps, overturning a decision by a Federal District judge in Houston who in 1999 ruled that "a sleeping counsel is equivalent to no counsel at all".

Burdine's current lawyer began his argument on Monday by quoting the dissenting opinion which observed: "It shocks the conscience that a defendant could be sentenced to death under the circumstances". He said the original lawyer was for long stretches "no more sentient than a potted plant".

In other parts of the South the killing machine grinds on remorselessly. A man convicted of killing three grocery store employees was executed on Tuesday by injection in Oklahoma. Thirty-five-year-old Mark An drew Fowler's was the fifth of seven planned for this month, a record for the state.