A man convicted of raping and stabbing to death a female passenger on a city bus received the death penalty after a jury deliberated three hours.  Emanuel Kemp Jr. was convicted of capital murder in the stabbing death of Johnnie Gray, 34, who was a medical clerk at a local hospital.  Gray was the only person aboard the bus when the assault occurred, police said. David V. Jeanfreau, the bus driver and only witness, said Kemp robbed him and Gray at knifepoint and then ordered the bus be driven to a local park.

Mentally ill killer's fate is uncertain

By Toni Heinzl - Star-Telegram

May 16, 2004

One night in May 1987, a 21-year-old ex-con with a history of armed robberies pulled a knife on a Fort Worth bus driver and forced him to drive to Trinity Park.

There, Emanuel Kemp raped and slashed to death the only other passenger, Johnnie Gray, a 34-year-old emergency room clerk at John Peter Smith Hospital in Fort Worth. He also stabbed the frightened young driver, David Jeanfreau, in the neck, but Jeanfreau fled and survived.

For those crimes, Kemp was locked away on Death Row in 1988, alone in his cell, where his mind slowly eroded. He is God, born from a bottomless pit; he cannot be killed; and he has been resurrected, he said.

Is it a cunning ploy to avoid his date with the executioner? Or is it evidence of insanity, which could save Kemp's life?

While a national spotlight has been cast on the issue of whether it's wrong to execute mentally retarded killers, the public debate has largely ignored Death Row inmates who become severely mentally ill after being convicted.

Texas and other death penalty states offer mentally ill Death Row inmates a degree of protection through a mental competence standard established by the U.S. Supreme Court in a 1986 Florida case.

In Ford v. Wainwright, the court ruled that it is unconstitutional to execute people who do not understand that they are being executed or why. In such a case, the execution is postponed until the condemned is deemed competent.

Most killers, even those with severe psychoses, would be found competent, said Texas Tech University law professor Brian Shannon.

"It's a low standard," said Shannon, co-author of the book Texas Criminal Procedure and the Offender with Mental Illness.

Several mental health groups, including the National Mental Health Association, say states should prohibit executions of inmates with severe mental illnesses, such as paranoid schizophrenia, which Kemp has.

The association also opposes using medical treatment to make Death Row inmates sane enough to be executed.

"People with mental illness in prison deserve treatment, but it's unfair to restore them to a rational state so they can be executed," said Laurie Young, the association's vice president.

Kemp's attorneys have argued that he is too mentally ill to be executed. And his execution has been postponed once after psychiatric evaluations.

"When we last visited him, it was surreal," said Bill Harris, one of Kemp's attorneys in his federal appeal. "He'd look at you, and he looked right through you. It was a blank stare."

Prosecutors say that while Kemp and other Death Row inmates may exhibit signs of mental illness, many of them are faking symptoms of insanity.

"Let's face it. This is their last shot to avoid execution," said Edward Wilkinson, a Tarrant County assistant district attorney. "They have exhausted all other claims. They have nothing else to bring."

In the past 10 years, he said, three or four Death Row inmates from Tarrant County have unsuccessfully claimed incompetence.

"Kemp is the only one coming close to being found incompetent to be executed," Wilkinson said.

Victims rights advocates say mentally ill Death Row inmates do not deserve additional protection.

"The current system has enough safeguards," said Diane Clements of Houston, president of the Texas chapter of Justice for All.

Kemp's crime was devastating for Gray's family, said attorney Huey Mitchell, who represented Gray's parents in a civil lawsuit against the Fort Worth Transportation Authority.

"The family is still grieving," Mitchell said. Gray's mother, Jimmie McKinney Crownover, was in bad health and could not be interviewed, he said.

Jeanfreau, the bus driver who escaped death by inches, said he has been waiting a long time for justice. He doesn't see why Kemp should be spared.

"Without a doubt, the punishment fits the crime in this case," Jeanfreau said.

Mental deterioration

State District Judge Don Leonard says he has never observed a mental breakdown like Kemp's.

The veteran judge of Criminal District Court No. 3, who in 1988 sentenced Kemp to die, has ordered periodic mental evaluations of Kemp since 1994, when a defense attorney handling Kemp's state appeal first raised the incompetence issue.

"He has really gotten bad. His condition has deteriorated while in prison ... " Leonard said. "I have no reason to believe he's competent."

Kemp did not appear to suffer from any major mental illness on the night of May 28, 1987, when he boarded the bus in the 1700 block of Hemphill Street near Allen Street.

He had been paroled two weeks earlier after serving about four years in prison for three armed robberies, including a holdup of a Fort Worth liquor store in which he stabbed a clerk.

A psychiatrist's report in April 1988 concluded that Kemp was competent to stand trial. The evaluation found that he understood the proceedings and could cooperate with his attorney.

The man who prosecuted Kemp also said he showed no signs of mental illness during the trial.

"He behaved himself during court proceedings, consulted with his attorneys and answered appropriately when asked for the record," said state District Judge Bob Gill, then a Tarrant County assistant district attorney.

"I remember after the trial, he appeared at a hearing. He wanted to represent himself on appeal. He explained very lucidly to the trial judge how he would go about researching and constructing an appellate brief."

The disintegration of Kemp's mental health since he arrived on Death Row is documented in a series of psychiatric evaluations starting in the early 1990s.

Prison psychiatrists repeatedly found that Kemp was mentally ill. The first diagnosis, on Nov. 8, 1991, was chronic paranoid schizophrenia. Patients with the condition lose touch with reality and are haunted by hallucinations or delusions of persecution or grandeur.

In 1994, Leonard appointed psychiatrist Ann Turbeville of Fort Worth to determine whether Kemp was competent to be executed. Turbeville's examinations of Kemp in 1994, 1996 and 1997 noted numerous examples of delusions and bizarre behavior. After the first two evaluations, she determined that he was incompetent to be executed.

Kemp told her that lethal injection could not kill him but that "he might spoil."

He "did not believe anything would happen since he had died some six times previously," Turbeville wrote in the 1996 report.

Kemp told her that he was ageless and that he had created himself.

In her last evaluation, in November 1997, Turbeville found that Kemp had improved enough to be executed, though he maintained that he was ageless.

She found him more coherent and noted that he remembered being convicted of murder.

But two years later, Turbeville changed her mind.

The reason: Her review of a transcript of a taped interview that defense attorney David Pearson had conducted with Kemp on April 2, 1999, while preparing for a state appeal.

During the interview, Kemp said prison authorities had replaced his blood with Kool-Aid.

In a May 14, 1999, letter to Pearson, Turbeville recommended another evaluation. Referring to Kemp's psychiatric treatment records from prison, she pointed to signs of a turn for the worse: "... eating foreign objects, smoking and burning everything in his cell, difficulty keeping his clothes on, ... crawling around on all fours and making strange noises, refusing to speak at times and pantomiming out answers, and speaking nonsensically."

Turbeville concluded that "this patient continues to have a very chronic psychotic state despite massive amounts of medication."

Few found incompetent

Kemp's case is hardly unique.

In February, the Georgia parole board commuted the death sentence of Alexander Williams, who was said to be so delusional that he believed actress Sigourney Weaver was God and spoke to him.

Three psychiatrists concluded that Williams suffers from paranoid schizophrenia.

Convicted in a high-profile murder case in East Texas, Monty Delk was executed Feb. 28 after years of bizarre behavior. His attorneys had argued that he was too mentally ill to assist in his defense. In recent years, Delk babbled and smeared himself with feces.

Strapped to the gurney before he was executed, he declared that he was the warden and that he was on the island of Barbados, according to Associated Press reports.

Defense attorneys said Delk, convicted in the 1986 murder of an Anderson County man, met the legal standard to be spared. But state attorneys, county prosecutors and the trial court found that Delk was feigning mental illness to avoid the death penalty.

However, Stanford University psychiatrist Ira D. Glick said it is virtually impossible for someone to fake psychosis consistently for several years.

"It's a lay concept of prosecutors who want to see defendants suffer for their crime," Glick said.

Other experts say the stress and isolation of imprisonment are not the only reasons for mental deterioration in prison.

"Remember, most serious mental illnesses, such as schizophrenia and bipolar disorder, first appear in the late teens and early 20s, and that's when most people enter prison for the first time," said psychiatrist Terry Kupers of Oakland, Calif., author of Prison Madness: The Mental Health Crisis Behind Bars and What We Must Do About It.

Exactly how often Death Row inmates claim to be mentally incompetent is uncertain. No state agency or advocacy group keeps such records.

An examination of death penalty appeals files at county prosecutors' offices would yield a detailed account, but nobody has undertaken such a study.

The National Mental Health Association estimates that 5 percent to 10 percent of Death Row inmates are severely mentally ill. Many of those will be found competent to be executed, said Roe Wilson, chief of post-conviction writs for the Harris County district attorney's office in Houston.

Harris County, the nation's most active death penalty jurisdiction, has 157 convicts on Death Row - more than a third of the state's 454 Death Row inmates.

Of the Harris County convicts, six were found incompetent to be executed, Wilson said.

The numbers are low, she said, because few inmates are deemed so insane that they meet the Supreme Court's standard.

"There are a lot of inmates who can have quite a few things wrong with them and still be found competent to be executed," Wilson said.

Houston lawyer Richard Burr, who represented Florida Death Row inmate Alvin Ford in the landmark Ford v. Wainwright case, said it is difficult to succeed with a claim of mental incompetence unless prosecutors agree with the diagnosis.

"The test requires minimal understanding on the part of the inmate but not the ability to assist their lawyer in challenging their sentence or conviction," said Burr, who was one of Timothy McVeigh's attorneys in the Oklahoma City bombing trial.

Ironically, Ford, a convicted cop killer, was found competent to be executed two years after the Supreme Court ruling that established the standard. He died in prison of complications from diabetes.

Forced treatment

A central question in the debate is whether prison doctors can forcibly medicate mentally ill inmates until they are sane enough to be executed. Experts on both sides say there are no easy answers.

The American Psychiatric Association and the American Medical Association have decided that it is ethical for a psychiatrist to determine whether an inmate is competent to be executed.

"Some psychiatrists have ethical concerns that they are contributing to the execution process if they find someone competent. But if it was officially declared unethical to do it, you'd find no expert to conduct such exams," said Dr. Jeffrey Metzner of Denver, chairman of the American Psychiatric Association's Council on Psychiatry and the Law. "An exam may also find that the person is incompetent and contribute to that person not being executed."

But the AMA and APA oppose administering medication to make an inmate well enough to be executed, Metzner said.

"It is ethical to medicate mentally ill Death Row inmates if the purpose of the medication is to relieve or decrease suffering, but not to make them competent to be executed," Metzner said.

That's where another contentious issue arises.

While some states, including Arizona and Florida, permit involuntary medication to make an inmate competent to be executed, the Texas Department of Criminal Justice bans the practice.

The department's policy also stipulates that prison mental health professionals who treat Death Row inmates cannot take part in evaluations to determine whether they are competent to be executed.

But the department will medicate mentally ill inmates against their will.

"We treat people for mental illnesses, not for forensic reasons of getting them up to par to be executed," said Carl Reynolds, general counsel for the Criminal Justice Department.

That treatment, ordered for medical reasons, may make inmates well enough that they are ultimately found competent to be executed, Reynolds said.

"That would be, I guess, an unfortunate outcome for the inmate," he said.

Borrowed time

Kemp is in that Catch-22, his attorneys say.

Once a month, he is transported from Death Row near Livingston to the Jester IV psychiatric unit near Richmond, not far from Houston. There, he is injected with Haldol, one of the most potent anti-psychotic drugs.

Because Haldol can be injected, it is commonly used on patients who refuse to take pills or drops, experts said.

Haldol acts as glue for a fractured mind. "It helps the thinking come together," said Glick, the Stanford University psychiatrist. "Without it, the brain is like a computer without central control."

Greg Westfall, one of Kemp's appeals attorneys, says he believes that the Haldol injections amount to forced treatment because Kemp is too insane to give consent.

"I'm worried they pump him full of Haldol every month until he reaches that fleeting moment where he understands what's going on so he can be executed," Westfall said.

If Kemp refused the treatment, he would be strapped down and given the injections, Westfall said.

"He really does not have a choice," he said.

Because of privacy rules, prison officials could not discuss Kemp's treatment, said Larry Fitzgerald, a spokesman for the Criminal Justice Department.

Kemp was a week away from being executed when U.S. District Judge Terry Means in Fort Worth granted a stay on June 23, 1999, so Kemp could obtain new attorneys to file a federal appeal.

He has been living on borrowed time since. Kemp, now 36, is approaching his 15th year on Death Row. Typically, a Texas Death Row inmate is imprisoned for about 10 1/2 years before he takes his last breath in the execution chamber.

Kemp is alone round-the-clock in his 14-by-6-foot cell at the Polunsky Unit near Livingston in East Texas. He eats by himself, receiving his food tray through the "bean slot" in his cell's steel door.

Defense attorneys Harris and Westfall, who filed Kemp's federal appeal, say court records show that he has not been able to engage in a coherent conversation to assist his attorneys since 1994. They also say mistakes were made during jury selection at his trial.

When Harris and Westfall last visited Kemp, in December 1999, he picked up the phone on his side of a glass divider and pantomimed having a conversation with them. He did not utter a single word.

It is uncertain when Means might rule on Kemp's appeal because the judge has a backlog of appeals from other Death Row inmates.

If the appeals attorneys do not win a new trial for Kemp, jurisdiction over the case would return to Leonard, the trial judge.

"Before the ink on the court papers has dried, we would ask the trial judge to order a new mental evaluation," Westfall said.

Haunted by memories

Just the mention of Kemp's name still touches a raw nerve in Jeanfreau.

He remembers staring at a knife with a blade more than 6 inches long and Kemp telling him, "This is a robbery."

After the murder, Jeanfreau was haunted by memories and soon quit driving city buses. He now works for the U.S. Postal Service in the Denver area.

Jeanfreau says he's lucky to be alive. It hurt when driver colleagues taunted him and called him a coward for not fighting Kemp to prevent the rape and murder of Gray, he said.

"Some macho drivers said it wasn't even a gun, only a knife," Jeanfreau said. "But a knife can kill, too. I'm terribly sorry I did nothing else. I was 22 years old. I was just a kid. I was not trained to defend passengers against assaults."

Gray's parents won a $90,000 judgment in 1990 against the Fort Worth Transportation Authority, court records show. In their negligence lawsuit, the parents said a lack of proper security and the driver's failure to protect Gray contributed to her violent death.

Jeanfreau said that bus drivers were not allowed to carry weapons and that he had never taken a self-defense class.

He occasionally visits the Web site of the Texas Department of Criminal Justice to see whether an execution date has been set for Kemp.

"I don't hate anybody," Jeanfreau said, "but if you don't give him the death penalty, who do you give it to?"