By Tom Jackman
Washington Post Staff Writer
Saturday, June 10, 2006

In some ways, the cases of convicted killers Percy L. Walton and Calvin E. Swann are remarkably similar: Both men are from Danville, Va.; both were tried by the same prosecutor; and both made last-minute appeals for clemency based on claims of mental illness.

In 1999, then-Gov. James S. Gilmore III, a staunchly pro-death penalty Republican, commuted Swann's sentence to life in prison in the face of indisputable evidence of Swann's mental illness. On Thursday night, Gov. Timothy M. Kaine (D), whose commitment to capital punishment has been under scrutiny because of his personal views, delayed Walton's execution and will conduct an independent inquiry into his mental state.

But the issue in Walton's case is far more complex. Walton, a triple killer, has repeatedly met the legal standard of mental competence. Walton's attorneys argue, however, that he has deteriorated steadily and that his mental state at the time of his scheduled execution -- it was set for Thursday night -- should be the deciding factor.

Kaine, in issuing his stay, noted that three years had passed since the last competency hearings and said there "is more than a minimal chance that Walton no longer knows why he is to be executed or is even aware of the punishment he is about to receive."

A spokesman for Kaine said no procedure has been devised to reexamine Walton's mental status. The decision to stay his execution for six months drew fire from some who said Kaine was reneging on a campaign promise to impose the death penalty despite his personal opposition.

But Carl Tobias, a law professor at the University of Richmond, said Kaine had not reneged. "There's no clemency at this point," Tobias said. "He's just conducting fact-finding to comply with the Supreme Court mandate against executing insane people. It seems to me that's a sensible, pragmatic approach."

Robert Bushnell, past president of the Virginia prosecutors association, said he was "hopeful and confident that when Gov. Kaine reviews all the evidence and the entire record in this case, he will find no basis to substitute his judgment for that of all the courts."

Walton, 27, pleaded guilty in 1997 to fatally shooting three people. His public defender, who also represented Swann, had Walton examined by two court-appointed psychiatrists. Both found him competent, so the attorney chose not to pursue an insanity defense. Walton pleaded guilty.

In his federal appeals, his attorneys argued that the U.S. Supreme Court and the Constitution prohibit the execution of an insane person. The legal standard for competency: whether the person knows he is being executed and why.

In 2003, three experts for Walton testified that he suffered from mental illness, but they disagreed about whether he understood what was happening. Walton testified that he did not know why he was going to be executed.

The state presented two experts who said Walton was not mentally ill. Faced with conflicting testimony, a federal judge in Roanoke appointed Mark J. Mills as a "neutral expert." Mills, a forensic psychiatrist, also was important in the Swann case, saying in 1999 that Swann was "totally crazy, words that I don't normally use."

In Walton's case, Mills told a federal judge that "he would have preferred to find Walton not competent" to be executed, according to a later ruling. "Nevertheless, Dr. Mills stated that he 'clearly believe(s)' that Walton understands that he is in prison for killing these three people and that he will be executed as punishment for these crimes."

The judge ruled in 2004 that Walton was competent to be executed. In March of this year, the 4th U.S. Circuit Court of Appeals agreed, and the U.S. Supreme Court rejected further appeals. So Walton's attorneys turned to the governor.

Jennifer L. Givens, one of Walton's attorneys, argued that schizophrenia typically emerges in the late teen years -- Walton was 18 when he was arrested -- and that he has not been treated since. His scores on IQ tests have steadily declined. "The question before Gov. Kaine is not whether he meets the standard" set by the courts, Givens said. "The question is, do you extend mercy in a case where an inmate has an IQ of 66 and when the inmate is severely mentally ill?"

Staff writer Maria Glod contributed to this report.