> ## Mentally Ill Man Faces Execution

> By JIM YARDLEY
> November 4, 2002

> HOUSTON, Nov. 3 — Barring an unexpected reprieve, James Colburn will be executed on Wednesday for the 1994 strangulation and stabbing death of Peggy Murphy. He admits he committed the murder, just as prosecutors admit the other salient point in the case: that Mr. Colburn is severely mentally ill.

> Psychiatrists first detected Mr. Colburn's condition, later diagnosed as paranoid schizophrenia, when he was 14. At 17, he was raped. He soon began hearing voices and suffering delusions. He told his mother he saw a devil slither out of his stomach. Often, his medical records say, the voices told him to kill himself or his family. He has tried to commit suicide at least 15 times.

> The unsettled question in Mr. Colburn's case — one upon which his life hangs — is whether it matters that he dozed through his own murder trial because he was so heavily medicated with antipsychotic drugs. His lawyers argue that the trial was unconstitutional, because his condition rendered him incompetent to stand trial. The federal appeals courts, so far, have disagreed, and the issue is now before the Supreme Court.

> "On a number of levels, it's wrong to execute him," said Philip H. Hilder, one of Mr. Colburn's lawyers.

> Gail McConnell, the Montgomery County assistant district attorney handling the appeal, agreed that Mr. Colburn had a tortured psychiatric history. But she noted that two psychologists had concluded that he was sane at the time of the murder and competent to stand trial.

> "This case doesn't make anybody happy," Ms. McConnell said, but she added: "He was getting treated. He had his shots at the time he committed the murder."

> The Colburn case comes nearly seven months after the trial of another mentally ill defendant in Houston, Andrea Yates, became a rallying cry for advocates who say the mentally ill should not be executed. Mrs. Yates was given a life sentence for drowning her five children.

> In June, the Supreme Court banned executing the mentally retarded, though no such prohibition applies to the mentally ill. Unlike Mrs. Yates, Mr. Colburn, 42, has attracted little attention. But in many ways, he offers a more typical example of how a mentally ill person becomes a violent criminal.

> Since childhood, Mr. Colburn has been treated in mental health programs, halfway houses and support groups. His family tried to have him institutionalized in a psychiatric hospital. Records show that as an adult, Mr. Colburn often tried to check himself into public health crisis units because of suicidal thoughts or an inability to cope.

> Often, he wound up discharged with a bottle of pills. He was voted out of one support group because he tried to kill himself. One neighbor in the apartment complex where Ms. Murphy was murdered recalled that Mr. Colburn could be heard banging his head against the walls, trying to quiet the furies inside.

> The psychiatrists who evaluated Mr. Colburn warned in his medical records that he could be capable of harming someone if not properly treated. He has served sentences for burglary, robbery, arson and a federal handgun violation. His family said he came to feel most secure in prison, where his medication is monitored and his freedoms are limited, and he told investigators that one reason he murdered Ms. Murphy was so he could return to a cell.

> On death row, he has regularly shuttled to the psychiatric ward, including a stay from June through September. His lawyers say he was placed in treatment because he had been eating his feces and drinking his urine.

> Joe Lovelace, policy director for the Texas chapter of the National Alliance for the Mentally Ill, said Mr. Colburn's regular transfers to the prison psychiatric unit underscored his need for treatment, though he added that a byproduct of his recent treatment was that it enabled him to be executed. Last month, an expert determined that Mr. Colburn was competent to be put to death.

> "You treat him to a level of wellness so you can kill him," Mr. Lovelace said. "That really creates a question in my mind of whether or not we have a humane application of the death penalty for people with mental illness."

> Peggy Murphy, 55, was murdered on June 26, 1994, in Conroe, a small town about 40 miles north of Houston. Prosecutors say Mr. Colburn invited her into his apartment for a drink. He attempted to rape her, and when she resisted, he strangled her and stabbed her with a steak knife. He then asked a neighbor to call the police.

> "Peggy always tried to look for the good in people and trusted too much," said Mirah Fielden, Ms. Murphy's sister. "She had a good heart, and she was a target for this evil man."

> At the trial, as prosecutors showed the videotape of Mr. Colburn's confession, jurors saw a man seemingly devoid of emotion, chewing a sandwich as he recounted the details of the killing. Defense lawyers argued insanity. Prosecutors argued that meanness, not mental illness, had provoked the killing. At least two jurors have since expressed doubts about the death sentence.

> In an affidavit, Mark Mullins, the foreman, said he wrote a note asking the judge if Mr. Colburn would be eligible for parole under a life sentence. The judge responded that the jury should not consider parole, and Mr. Mullins said this damaged Mr. Colburn's chances of getting life, since some jurors worried he could be released in 10 years. (By law, he would have been required to serve at least 40 years under a life sentence.)

> A crucial witness in the trial was Dr. Walter Quijano, the psychologist who found Mr. Colburn competent to stand trial but confirmed that he suffered from severe mental illness. At times, Dr. Quijano seemed to offer contradictory testimony about whether Mr. Colburn might have committed the murder in response to "command hallucinations," or voices telling him to do it.

> At one point, the trial was interrupted by Jerald Crow, one of Mr. Colburn's defense lawyers. "Judge, I don't know that it matters, but I think I need a break to walk my client around the room a little bit," he said. "He's snoring kind of loud."

> His other lawyer, Rick Stover, added: "They apparently injected him last night to calm him down, and I appreciate it. But he's sleeping right now."

> In Mr. Colburn's appeals, Mr. Hilder and the other appellate lawyer, James Rytting, argued that he was too sedated to be aware of the proceedings. They cited a newspaper account in The Conroe Courier that described him as "in a state of sedation through much of the trial."

> But the Fifth Circuit Court of Appeals rejected that argument, noting that it was uncertain how often Mr. Colburn had slept and that his lawyers had failed to "show his sleepiness rendered him unable to understand the trial proceedings or to assist his attorneys in his defense." The court also cited affidavits from Mr. Colburn's trial lawyers who judged him to be competent during trial. The trial lawyers also said they thought his medicated, blank-eyed demeanor would help them convince the jury that he was insane — a tactic that failed.

> Mr. Colburn's appeals lawyers filed a stay of execution motion last week before the Supreme Court, but such motions are rarely granted.

> One juror said Mr. Colburn's lack of emotion in the trial convinced her he was mean and lacked compassion, not insane. That juror, Kimberly Queener, who now says she would not vote for death, said the jury did not realize that Mr. Colburn's demeanor could be explained by chronic schizophrenia.

> "Had I been informed at trial that Mr. Colburn's appearance on tape and in court was due to his disease," Ms. Queener said in an affidavit, "I would have formed an entirely different opinion of him."

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