SUPREME COURT OF MISSOURI

en banc

STATE ex rel. ANDRE COLE, )

 )

Petitioner, )

 )

v. ) No. SC94880

 )

CINDY GRIFFITH, WARDEN, )

POTOSI CORRECTIONAL CENTER, )

 )

Respondent. )

ORIGINAL PROCEEDING IN HABEAS CORPUS

Opinion issued April 9, 2015

On February 25, 2015, this Court scheduled the execution of Andre Cole for April 

14, 2015. On March 23, 2015, Mr. Cole filed a petition for a writ of habeas corpus, 

claiming that he is incompetent to be executed under Ford v. Wainwright, 477 U.S. 399 

(1986); Panetti v. Quarterman, 551 U.S. 930 (2007); and section 552.060.1.1

 Mr. Cole

asks this Court to issue a writ prohibiting his execution and to appoint a special master to 

conduct an evidentiary hearing on his claim of incompetency. He also filed a motion for

a stay of execution while his incompetency claim is adjudicated. Because the evidence 

before this Court shows that Mr. Cole has a rational understanding of his sentence and the 

reason for it and that he is capable of understanding matters in extenuation, arguments for 

clemency, and reasons why his sentence should not be carried out, Mr. Cole is not 

 1 All statutory references are to RSMo 2000, unless otherwise indicated.
incompetent to be executed under Ford, Panetti, or section 552.060.1. Therefore, this 

Court denies his habeas petition on the merits and overrules his accompanying motion for 

a stay of execution.

Factual and Procedural Background

In 2001, Mr. Cole was convicted of first-degree murder, first-degree assault, firstdegree burglary, and two counts of armed criminal action. Mr. Cole was sentenced to 

death for the murder.2

 This Court affirmed Mr. Cole’s convictions on direct appeal.

State v. Cole, 71 S.W.3d 163 (Mo. banc 2002) (Cole I). Mr. Cole’s motion for postconviction relief was overruled, and this Court affirmed that decision. Cole v. State, 152 

S.W.3d 267 (Mo. banc 2004) (Cole II). The United States District Court for the Western 

District of Missouri denied Mr. Cole’s federal petition for a writ of habeas corpus, Cole v. 

Roper, 579 F. Supp.2d 1246 (E.D. Mo. 2008) (Cole III), and the United States Court of 

Appeals for the Eighth Circuit affirmed that decision, Cole v. Roper, 623 F.3d 1183 (8th 

Cir. 2010) (Cole IV).

A. Mr. Cole’s Crimes

3

Mr. Cole and his wife, Terri, divorced in 1995 after eleven years of marriage. Mr. 

Cole was ordered to pay child support for the care of the couple’s two children, but his 

periodic failure to make payments resulted in an arrearage of nearly $3,000. The record 

indicates that Mr. Cole and Terri also had disputes involving visitation with the children, 

 2 He was also sentenced to three terms of life imprisonment for assault and two counts of 

armed criminal action and a thirty-year term of imprisonment for burglary.

3 The recital of Mr. Cole’s crimes is taken from the opinion of the Eighth Circuit in Cole 

IV without further attribution. 623 F.3d at 1186.
3

and in August 1998, Mr. Cole was upset about his alleged lack of visitation with his two 

sons. There is also evidence he was upset about his wages being garnished to cover the 

child support arrearage. On the evening of August 21, 1998, Mr. Cole forced his way 

into Terri’s house by throwing a tire iron through a glass door leading to the dining room 

from the patio. Anthony Curtis, who was visiting Terri, confronted Mr. Cole and asked 

him to leave. Mr. Cole stabbed and slashed Mr. Curtis more than twenty times, the fatal 

blow being an eight-inch deep knife wound to Mr. Curtis’s back. Mr. Cole then assaulted 

Terri, stabbing her repeatedly in the stomach, breasts, back, arms, and her hands when 

she attempted to defend herself. Terri survived and testified at trial. After the attack, Mr. 

Cole fled the state, but after a little over a month, returned to St. Louis and surrendered to 

the police. DNA analysis confirmed the presence of both victims’ blood on the knife and 

the presence of Mr. Cole’s blood on the deck of Terri’s home, the backyard fence, and in 

the street where Mr. Cole’s car had been parked.

B. Mr. Cole’s Trial

Prior to his trial, Mr. Cole’s counsel requested an evaluation of Mr. Cole’s 

competency to stand trial under section 552.020 and to determine whether Mr. Cole was 

not criminally liable by reason of a mental disease or defect under section 552.030. The 

trial court appointed Dr. Richard Scott to evaluate Mr. Cole to determine his competency 

to stand trial. Dr. Scott opined that Mr. Cole was not suffering from a mental disease or 

defect at that time and that he was capable of understanding the proceedings against him 

and assisting in his own defense. Dr. Michael Armour, who was retained by Mr. Cole’s 

trial counsel, also evaluated Mr. Cole. Dr. Armour concluded that Mr. Cole was not 
4

suffering a mental disease or defect at the time of the murder that would have precluded 

him from knowing and appreciating the nature, quality, and wrongfulness of his conduct. 

In their reports, Dr. Armour and Dr. Scott both noted that Mr. Cole denied symptoms of 

depression, paranoia, delusions, and hallucinations, and they specifically eliminated 

depression as a possible diagnosis for Mr. Cole.

During the guilt phase of trial, Mr. Cole did not raise the issue of mental illness as 

a defense or claim that he was incompetent to stand trial. Instead, Mr. Cole presented the 

theory that he did not bring a weapon into Terri Cole’s house and that Mr. Curtis initiated 

the attack with a knife. He further testified that he did not have a knife in his hand that 

night. Mr. Cole did not raise an issue with his mental health during the penalty phase.

C. Mr. Cole’s Post-Conviction Proceedings

In his post-conviction relief proceedings, Mr. Cole asserted that trial counsel was 

ineffective for failing to present expert witness testimony during the penalty phase to 

support a claim that Mr. Cole was under extreme mental or emotional disturbance at the 

time of the crime. In support of this claim, Mr. Cole relied on the report and testimony of 

Dr. William Logan, a forensic psychiatrist. Dr. Logan’s report stated that Mr. Cole was 

suffering from major depression at the time of the offense and that his depression, along 

with alcohol intoxication and the use of steroids, impaired his ability to rationally 

deliberate and use reasoned judgment at the time of the offense. At the evidentiary 

hearing on Mr. Cole’s post-conviction relief motion, Dr. Logan admitted that Mr. Cole 

had lied in the case and that Dr. Logan could not always tell when Mr. Cole was lying. 
5

In denying his claim of ineffective assistance of counsel, the motion court found 

Dr. Logan to not be a credible witness, stating:

The Court, having heard and considered all of Dr. Logan’s testimony finds 

his opinions to lack the necessary evidence required to support his 

conclusions. Dr. Logan admitted that he based his opinions on [Mr. Cole’s] 

testimony as well as interviews with [Mr. Cole’s family and friends]. Dr. 

Logan confessed that his entire source of materials for his testimony were 

litigation materials chosen and provided to him by [Mr. Cole’s] counsel. 

Clearly, this testimony was biased towards the particular conclusion [Mr. 

Cole’s] counsel desired to reach. Dr. Logan conceded that many of the 

claims made by [Mr. Cole] in his interview were distorted, minimized, 

inconsistent and probably untrue. He agreed that [Mr. Cole’s] current 

version of events differed greatly from his trial testimony and previous 

statements to Drs. Scott and Armour. Dr. Logan admitted that [Mr. Cole], 

his family and friends have incentive not to speak honestly about his 

participation in these crimes. He conceded that his report did not have 

balance by including any interviews with the victim, Terri Cole or her 

family of their description of the marital discord. Dr. Logan’s testimony 

was rife with biased hearsay, inconsistent theories and was substantially 

discredited through cross-examination.

The motion court further stated, “[Dr. Logan’s] testimony and status as an expert witness 

is rejected by this Court.” 

The court ultimately found that trial counsel was not ineffective for not presenting 

expert testimony that Mr. Cole was under extreme mental or emotional distress at the 

time of the murder. In addition to the two pre-trial reports that did not find Mr. Cole 

suffered from a mental disease or defect, trial counsel interviewed 25 individuals 

identified to her by Mr. Cole and his family, and none of the witnesses reported any 

mental health issues with Mr. Cole or his family. See Cole II, 152 S.W.3d at 270. 

Further, the motion court found that arguing Mr. Cole was acting under extreme 

emotional or mental distress would have been inconsistent with Mr. Cole’s trial 
6

testimony in which he denied involvement in the murder and stated that Mr. Curtis was 

the initial aggressor. On appeal, this Court affirmed the motion court’s judgment, finding 

that Mr. Cole did not receive ineffective assistance of counsel. Id. at 269-70. 

D. Mr. Cole’s Federal Habeas Proceedings

In his federal habeas writ petition, Mr. Cole raised again his claim of ineffective 

assistance of counsel based on counsel’s failure to present expert testimony that he was 

acting under extreme mental or emotional distress at the time of the murder. Cole III, 

579 F. Supp.2d at 1276. Mr. Cole again relied on Dr. Logan’s 2002 report in which Dr. 

Logan opined that Mr. Cole suffered from depression at the time of murder. Id. The 

district court found trial counsel was not ineffective for not pursuing an emotional 

distress argument when two pretrial mental health evaluations, interviews of 25 lay 

witnesses, and Mr. Cole’s own statements to counsel did not reveal that Mr. Cole was 

suffering from any mental illness. Id. at 1277-80. On appeal, the Eighth Circuit held the 

district court did not err in rejecting Mr. Cole’s ineffective assistance of counsel claim. 

Cole IV, 623 F.3d at 1190.

Mr. Cole’s Present Incompetency Claim

Mr. Cole now claims he is not competent to be executed. He petitions this Court 

for a writ of habeas corpus prohibiting his execution and an order appointing a special 

master to conduct an evidentiary hearing to adjudicate his claim of incompetency. He 

also moves this Court to stay his execution on the ground that the procedures for 

appointing a special master and holding a hearing cannot reasonably be accomplished 

before his scheduled execution.
7

In support of his present claim of incompetency, Mr. Cole filed affidavits from his 

attorneys, Joseph Luby and Carol Camp. Mr. Luby has represented Mr. Cole since 2001 

and states that he has noticed deterioration in Mr. Cole’s mental condition over the last 

four years. According to Mr. Luby, beginning in 2011, conversations with Mr. Cole have 

become more difficult in that Mr. Cole jumps from topic to topic, speaks quickly and 

with agitation, and has become paranoid. Ms. Camp began representing Mr. Cole in 

October 2014 and states that she has noticed a significant and consistent deterioration in 

Mr. Cole’s mental condition since that time.

Mr. Luby’s and Ms. Camp’s affidavits report five conversations – either over the 

telephone or in person – with Mr. Cole between October 23, 2014, and March 20, 2015. 

According to the affidavits, Mr. Cole told his attorneys during these conversations that he 

had been hearing voices and that he believed the state had been trying to communicate 

with him through the television, intercom system, and prison staff and inmates. The 

voices would make racist and harassing comments and tell Mr. Cole that the state was 

trying to get him. When asked by his attorneys whether the comments were coming from 

other prisoners or something supernatural, Mr. Cole initially stated that he did not know 

but later stated that the harassment was mostly from other prisoners. Mr. Cole’s 

attorneys also report that Mr. Cole appeared to have trouble communicating during these 

conversations; he had trouble following a train of thought for more than short periods of 

time and would change from normal speech to whispering or mouthing words midsentence.
8

In addition to his attorneys’ affidavits, Mr. Cole filed a recent report from Dr. 

Logan, the psychiatrist who testified at Mr. Cole’s post-conviction motion hearing. Dr. 

Logan’s report is based on a 2.5 hour examination of Mr. Cole that occurred on February 

20, 2015, the report from his previous examination of Mr. Cole in 2002,4 Mr. Cole’s 

medical records from the department of corrections, memoranda from Mr. Cole’s 

attorneys regarding their interactions with him, and a memorandum describing his 

attorneys’ meeting with Mark Williamson, Mr. Cole’s cellmate in early 2015. Dr. Logan 

states that this information showed Mr. Cole’s mental state had deteriorated and that Mr. 

Cole has become withdrawn, has been reported as talking to someone when he is alone, is 

secretive, and exhibits odd behaviors such as turning on the television to drown out

voices. Dr. Logan also notes the reports that Mr. Cole has been hearing voices discussing 

issues relating to his legal case, disability, and family and financial issues.

Dr. Logan states that, during the examination, Mr. Cole was able to recall the 

historical elements of his case. Dr. Logan also reports that, as the interview progressed, 

Mr. Cole’s thinking became more disorganized and would digress to talking about his 

emotional state. Mr. Cole reported feeling depressed, overwhelmed, and distracted by the 

voices. He told Dr. Logan that he believed the voices are supernatural. Regarding the 

voices, Mr. Cole told Dr. Logan many of the things about the voices that he told his 

attorneys, including that he thinks the voices are trying to scare him with the death 

 4 When he prepared his 2002 report, Dr. Logan considered the opinion of Dr. Michael 

Stacy, who performed a psychological evaluation of Mr. Cole around that time. 
9

penalty and that the state wants to execute him to “take [him] down.” Using language 

from section 552.060.1, Dr. Logan concluded: 

Mr. Cole is depressed with prominent symptoms of psychosis which 

adversely affect his comprehension and understanding to the extent that his 

mental disease causes him to lack the capacity to understand the nature and 

purpose of the punishment about to be imposed upon him or matters in 

extenuation, arguments for executive clemency or reasons why the sentence 

should not be carried out. Mr. Cole’s hallucinations have compromised his 

understanding to the point he has gross delusions which prevent him from 

comprehending or forming a rational understanding of the reason for the 

execution to which he has been sentenced.

The state filed a response opposing Mr. Cole’s writ petition and submitted 

exhibits, including the department of correction’s mental health records of Mr. Cole and 

audio recordings and transcripts from telephone calls with Mr. Cole.5

 The first 

conversation occurred on September 12, 2014, between Mr. Cole and a woman and was 

seven minutes long.6

 Mr. Cole asked the woman if she had read any articles about a 

recent issue that had come up with a man who was executed and stated that he had read 

something stating there was an issue with George Lombardi lying about the protocol.7

 

The September 26, 2014, conversation was also with a woman and lasted thirteen 

minutes. During the conversation, Mr. Cole brought up a woman in Texas who was 

executed. Mr. Cole had been doing research on the woman and expressed that he did not 

think it made sense that the woman received the death penalty when another woman who 

 5 The state also filed the reports from the psychiatrists who evaluated Mr. Cole prior to 

trial and grievances Mr. Cole filed with the department of corrections.

6 References to Mr. Cole’s father as “dad” and “your daddy” and the female’s reference 

to Mr. Cole and his sister suggest that the female is Mr. Cole’s mother.

7 The female later identified the man as “Ringo,” likely referring to Earl Ringo, Jr., 

whose death sentence was carried out on September 10, 2014.
10

had participated in the murder did not. Mr. Cole also expressed an opinion that there 

should be a standard death penalty procedure among the states. 

The sixteen-minute conversation from March 1, 2015, is between Mr. Cole and a 

man. Mr. Cole explained that he was in “pre-execution status,” which meant that he 

would be moved to a different facility soon and that his visitation procedure had changed. 

During much of the conversation, Mr. Cole and the man discussed how Mr. Cole needed 

to keep faith in God. Mr. Cole also stated that he had called his mother to see how she 

had been holding up with the circumstances. 

The conversation on March 9, 2015, was between Mr. Cole and a woman and 

lasted 50 minutes.8

 The woman told Mr. Cole that she was praying for a miracle and 

repeatedly assured Mr. Cole that God was there for him. During the conversation, the 

woman told Mr. Cole about a recent Georgia execution that was stayed due to inclement 

weather and an issue with the execution drugs. Mr. Cole then discussed questions that 

have been raised about execution drugs, including questions regarding the drugs’ 

compositions, how the drugs are being used, whether the drugs are “clean,” and whether 

there has been sufficient testing on the drugs. Mr. Cole later mentioned problems he 

perceived in his trial, including: (1) a racial bias against him; (2) that the prosecutor’s 

story that he stabbed a man to death while he also had a gun did not make sense; (3) and 

that the alleged motives for the crimes – Mr. Cole was jealous of Mr. Curtis and Mr. Cole 

could not pay child support – were not true. Additionally, in response to the woman 

 8 The woman is likely Mr. Cole’s sister because she refers to Mr. Cole as “brother.”
11

asking Mr. Cole if he could take medication to help calm him, Mr. Cole indicates that he 

had been told not to see the prison’s psychiatrist.

The last conversation occurred on March 24, 2015, and lasted only two and half 

minutes. Mr. Cole called Ms. Camp to let her know that Dr. Alwyn Whitehead, who 

works for the department of corrections, had visited him but that he did not say anything 

to him. Ms. Camp reminded Mr. Cole that the telephone call was being recorded and 

suggested setting up a telephone call to talk further.

Mr. Cole filed a reply to the state’s response, submitting a letter from Dr. Logan 

stating that he had reviewed the state’s exhibits and that the exhibits did not change his 

opinion regarding Mr. Cole’s competency. Mr. Cole also filed a report prepared in 2002 

from Dr. Michael Stacy, a psychologist who examined Mr. Cole. In the report, Dr. Stacy 

had diagnosed Mr. Cole with major depressive disorder, recurrent, moderate. 

Mr. Cole also filed a signed statement from Jessica Sutton, who represented Mr. 

Cole from 2012 to October 2014. Like Mr. Cole’s current attorneys, Ms. Sutton stated 

she noticed a marked deterioration of Mr. Cole’s mental health during her representation 

of him. According to Ms. Sutton, Mr. Cole used to be active in the prison community, 

but by the end of Ms. Sutton’s representation of Mr. Cole, he had minimal interaction 

with other prisoners. Ms. Sutton states that Mr. Cole was particularly distressed during 

her last meeting with him on October 4, 2014, and he reported hearing voices at night. 
12

She also found Mr. Cole had trouble communicating and was in an agitated state during 

that visit.

9

Failure to Show Incompetency

Mr. Cole petitions this Court for a writ of habeas corpus on the ground that he is 

incompetent to be executed. A petition for a writ of habeas corpus is a proper means to 

raise a claim of incompetency. State ex rel. Middleton v. Terry Russell, 435 S.W.3d 83, 

83 (Mo. banc 2014). In his petition, Mr. Cole raises two claims of incompetency: (1) he 

is incompetent under the standards established by the United States Supreme Court in

Ford and Panetti because he suffers a mental disease or defect that prevents him from 

rationally understanding his death sentence; and (2) he is incompetent under section 

552.060.1 because his mental disease or defect also prevents him from understanding 

matters in extenuation, arguments for executive clemency, or reasons why his sentence 

should not be carried out.

A. Ford and Panetti

The Eighth Amendment’s prohibition against cruel and unusual punishment 

prevents a state “from inflicting the penalty of death upon a prisoner who is insane.” 

Ford, 477 U.S. at 410. This Court applies the standard set out in Ford and Panetti for an 

Eighth Amendment claim that a prisoner is not competent to be executed. See State ex 

rel. Clayton v. Griffith, __ S.W.3d__ Slip Op. at 15 (SC94841) (Mo. banc March 14, 

 9 Ms. Sutton’s written statement states that she could not provide an affidavit because she 

is currently traveling abroad. Mr. Cole provided an affidavit from Ms. Sutton’s former 

co-worker who accompanied Ms. Sutton to the prison on October 4, 2014, and who 

remembers Ms. Sutton describing Mr. Cole’s bizarre behavior during the visit.
13

2015). A state may not execute a prisoner “‘whose mental illness prevents him from 

comprehending the reasons for the penalty or its implications” or is “unaware of the 

punishment they are about to suffer and why they are to suffer it.’” Panetti, 551 U.S. at

957, citing Ford, 477 U.S. at 417, 422. In Panetti, the United States Supreme Court held

that a prisoner is not competent to be executed where the prisoner’s “mental illness . . . is 

the source of gross delusions preventing him from comprehending the meaning and 

purpose of the punishment to which he has been sentenced.” 551 U.S. at 960. The

Supreme Court emphasized that the delusions must “impair the prisoner’s concept of 

reality [so] that he cannot reach a rational understanding of the reason for the execution.” 

Id. at 958. 

“Prior findings of competency do not foreclose a prisoner from proving he is 

incompetent to be executed because of his present mental condition.” Id. at 934. 

However, the state may presume that a prisoner who has been judged competent to stand 

trial remains sane at the time sentence is to be carried out and “require a substantial 

threshold showing of insanity” to trigger further proceedings. Ford, 477 U.S. at 426; see 

also Middleton, 435 S.W.3d at 84.

The Supreme Court has not clarified the “substantial threshold showing of 

insanity.” Mr. Cole points to other jurisdictions articulating a standard and argues that if 

a prisoner’s evidence meets the threshold when considered alone, he is entitled to an 

evidentiary hearing. Unlike some of the cases on which Mr. Cole relies,10 however, 

 10 See Provenzano v. State, 751 So.2d 37 (Fla. 1999) (applying Florida Rule of Criminal 

Procedure 3.821); Druery v. State, 412 S.W.3d 523 (Tex. Crim. App. 2013) (applying 
14

Missouri does not have a statutory procedure for adjudicating claims of incompetency to 

be executed raised before this Court. Therefore, this Court is guided by Panetti.

In Panetti, the prisoner had a well-documented history of mental illness at the time 

of his crimes that included delusions and hallucinations. 551 U.S. at 936. During trial, 

the prisoner’s trial counsel described his behavior during trial as “bizarre,” “scary,” and 

“trance-like,” and the record demonstrated that his mental condition only worsened after 

trial. Id. at 936-37. After the prisoner claimed he was incompetent to be executed, the 

state court ordered two court-appointed medical experts to examine the prisoner. Id. at 

938-39. The court relied on opinions of the court-appointed experts, who concluded the 

prisoner was competent to be executed. The Court denied the prisoner’s claim without

addressing the prisoner’s objections to the experts’ reports or his request for funds to hire 

his own mental health expert. Id. at 940-41. The Supreme Court found the state court 

proceedings not only departed from the state’s own statutory proceedings but were 

contrary to Ford. Id. at 948.

In articulating the due process protections required by Ford, the Supreme Court 

stated: 

Once a prisoner seeking a stay of execution has made “a substantial 

threshold showing of insanity,” the protection afforded by procedural due 

process includes a “fair hearing” in accord with fundamental fairness. This 

protection means a prisoner must be accorded an “opportunity to be heard,” 

though “a constitutionally acceptable procedure may be far less formal than 

a trial.” As an example of why the state procedures on review in Ford were 

deficient, Justice Powell explained, the determination of sanity “appear[ed] 

to have been made solely on the basis of the examinations performed by 

 

Article 46.05); and Timberlake v. State, 858 N.E.2d 625 (Ind. 2006) (applying Indiana 

Post-Conviction Relief Rule 1, section 12(b)).
15

state-appointed psychiatrists.” “Such a procedure invites arbitrariness and 

error by preventing the affected parties from offering contrary medical 

evidence or even from explaining the inadequacies of the State’s 

examinations.”

Id. at 949 (internal citations omitted) (quoting and citing Ford, 477 U.S. at 424, 427).

Neither Ford nor Panetti states that a prisoner is entitled to an evidentiary hearing 

to determine competency to be executed. Rather, Ford and Panetti hold that due process 

requires that a prisoner who makes a substantial showing of incompetency be provided an 

opportunity to be heard, which includes submission of “evidence and argument from the 

prisoner’s counsel, including expert psychiatric evidence that may differ from the State’s 

own expert psychiatric examination.” Ford, 477 U.S. at 424, 427; see also Panetti, 551 

U.S. at 949-50. In both Ford and Panetti, the state court proceedings were driven and 

controlled by the state without providing the prisoner an opportunity be heard. Ford, 

477 U.S. at 403-04; Panetti, 551 U.S. at 936-41. 

Unlike in Panetti, Mr. Cole has not been deprived of an opportunity to be heard. 

Mr. Cole initiated this proceeding by filing his writ petition in which he submitted his 

counsel’s argument and his own evidence, including expert psychiatric evidence. Mr. 

Cole had the further opportunity to respond to the state’s evidence with his counsel’s 

argument and evidence. Because his petition for a writ of habeas corpus is an original 

proceeding in this Court, pursuant to Rules 84.22 and 91.01, this Court is the factfinder.

11 In this role, the Court considers Mr. Cole’s argument and evidence in ruling on 

 11 While the Court may appoint a special master pursuant to Rule 68.03 when the 

circumstances of a case require further fact finding, the circumstances of this case do not 

so require. 
16

his writ petition. Accordingly, even assuming Mr. Cole’s evidence makes a substantial 

showing of incompetency, he has received all process to which he is entitled under Ford 

and Panetti. 

The Supreme Court in Panetti expressly declined to consider “whether other 

procedures, such as the opportunity for discovery or for the cross-examination of 

witnesses, would in some cases be required.” 551 U.S. at 952 (emphasis added). This 

Court also need not consider this question because it finds that Mr. Cole’s evidence lacks 

credibility, particularly when viewed in light of the state’s evidence, to make a sufficient 

showing of incompetency such that this Court would require additional protections. 

In support of his incompetency claim, Mr. Cole relies on Dr. Logan’s report and 

on his attorneys’ affidavits. Dr. Logan concluded that Mr. Cole is suffering from 

depression with symptoms of psychosis, specifically “gross delusions that prevent Mr. 

Cole from comprehending or forming a rational understanding of the reason for the 

execution to which he has been sentenced.” Dr. Logan did not attempt to specifically 

connect his conclusions with the behavior described in his report, but presumably, the 

gross delusions to which Dr. Logan referred were the voices that are described in more 

detail in Mr. Cole’s attorneys’ affidavits. 

According to the affidavits, these alleged voices tell Mr. Cole that the state wants 

to execute Mr. Cole to “take him down,” that state officials will have him killed by 

shanks or pencils if he does not change his behavior, that the state is using the threat of 

execution to scare him, and that he will be released from prison after which he should 

receive money from the state and will live with his mother. In their affidavits, however, 
17

the attorneys do not express their opinions about Mr. Cole’s ability to understand his 

sentence and the reason for it.

Neither the affidavits nor Dr. Logan’s report explain what exactly is Mr. Cole’s

understanding of his scheduled execution or the reason to which he has been sentenced to 

death. By concluding the delusions prevent Mr. Cole from forming a rational 

understanding of the reason for execution, Dr. Logan may have found that Mr. Cole 

believed what the voices were saying with respect to his sentence. However, Dr. Logan 

did not include such a finding in his report. 

This Court is cautious of accepting Dr. Logan’s conclusion. The circuit court 

presiding over Mr. Cole’s post-conviction proceedings found Dr. Logan was not a 

credible expert and did not believe his report or testimony regarding Mr. Cole’s mental 

state at the time of the offense. Additionally, Dr. Logan’s reports were relied on by 

prisoners alleging incompetency precluding execution in Middleton and Clayton. Both 

times, this Court found flaws in Dr. Logan’s reports and was not persuaded by his 

opinions that the prisoners were incompetent. Clayton, Slip Op. at 23-25; Middleton, 435 

S.W.3d at 84-85. Considering Dr. Logan’s lack of credibility in previous proceedings in 

Mr. Cole’s case and other cases before this Court, this Court does not give much weight 

to Dr. Logan’s conclusion that Mr. Cole suffers gross delusions preventing him from 
18

rationally understanding the reason for his sentence when Dr. Logan fails to identify or 

explain Mr. Cole’s understanding of his sentence.12

Further, Dr. Logan concluded Mr. Cole’s delusions were a result of his depression. 

Unlike in Panetti, Mr. Cole does not have a credible, documented history of mental 

illness. There are no records of hospitalization for a mental illness, and Mr. Cole has 

previously denied having symptoms of depression or having delusions. Despite 

interviewing 25 of Mr. Cole’s family members and friends in preparation for trial, Mr. 

Cole’s trial counsel found no history of mental illness. Neither Dr. Scott nor Dr. Armour, 

who examined Mr. Cole before trial, found he was suffering from any serious mental 

disease disorder other than alcoholism. The earliest observation of the alleged “gross 

delusions” that Mr. Cole now suffers was in October 2014. While Mr. Cole’s statements

to Ms. Sutton predate this Court’s order, dated October 22, 2014, to show cause why an 

execution date should not be set, Mr. Cole’s reports of hearing voices began at a time 

when the immediacy of his execution was becoming a reality.13 Though a prior finding 

of competency does not preclude a finding of incompetency under Ford and Panetti, it is 

probative that Mr. Cole’s claim of a mental illness that causes gross delusions is not 

supported by a credible history of mental illness and became apparent only when Mr. 

Cole’s execution was nearing. 

 12 In an effort to boost Dr. Logan’s credibility, Mr. Cole argues that Dr. Logan has also 

testified for the prosecution, citing an online newspaper article about one Kansas case in 

which Dr. Logan testified for the prosecution.

13 During the telephone conversation on September 26, 2014, Mr. Cole discussed an 

execution in Texas, and then made comments that suggested that he was anticipating and 

preparing for his execution date to be scheduled.
19

Most important, a review of the audio recordings of Mr. Cole’s telephone 

conversations undermines his claims that his mental state has deteriorated or that he is 

suffering from delusions preventing him from rationally understanding his sentence. 

Instead, the recordings reveal that he has a rational understanding of his execution, 

including the reason for it. On March 1, 2015, Mr. Cole explained to the male caller that 

he was on “pre-execution status.” He also expressed concern about his mother:

And I’ve really just really been just trying to see how she’s been holding up 

and how she’s been doing, you know, with the circumstances more than 

anything. I really haven’t been trying to bother her, just wanted to, you 

know, just keep her – keep her, you know, aware and everything else; and 

as well as that just to assure her, you know, that I – I’m praying and 

keeping myself, you know – I’m staying on the Lord, you know, night and 

day . . ..

Considering the context of the rest of the conversation, the “circumstances” to which Mr. 

Cole was referring was his execution date being set. 

During the conversations from September 26, 2014, March 1, 2015, and March 9, 

2015, Mr. Cole made several references to placing his trust in God and praying for a 

miracle. On March 9, after discussing a stayed execution in Georgia, problems with the 

drugs used for executions, and the issues with his murder trial, Mr. Cole and the female 

caller talked about Mr. Cole remaining faithful to God. Mr. Cole stated:

I’m praying, you know, that this thing will turn around like you said and 

everything else. And I’m hoping, you know, maybe there will be some 

results possibly soon or, you know. I don’t know, you know, how, how, 

how it will come about. I really don’t. Like you said, He has His own time 

and everything else and I’m hoping to be --.

He later stated:
20

There is no doubt that I believe He can walk me through this whole 

situation, walk me right up out of here and everything else. No doubt. You 

know, I, I don’t even question that. Not any bit.14

If Mr. Cole believes the alleged voices telling him that he would be released and that 

state officials, like Prosecutor McCulloch, have authority to release him, Mr. Cole would 

not be so resolute in trusting that God will help him. 

Not only do Mr. Cole’s conversations regarding his faith raise questions about the 

authenticity of the alleged delusions but they also show he understands his execution. In 

Ford, the Supreme Court noted that a basic principle of civilized societies is that one is 

not put to death “who has no capacity to come to grips with his own conscience or deity.” 

477 U.S. at 409. Mr. Cole has demonstrated, however, that he is capable of coming to 

grips with his own deity.

Additionally, the persuasiveness of the attorneys’ affidavits and Dr. Logan’s report 

with respect to Mr. Cole’s behavior is significantly weakened by the audio recordings 

from the telephone conversations. In their affidavits, the attorneys state that Mr. Cole 

appeared agitated, talked for long periods of time before suddenly stopping during a 

sentence, sometimes whispered or mouthed words, and jumped from topic to topic in a 

disorganized fashion. Dr. Logan also reported that Mr. Cole’s thinking became 

disorganized during the examination. Mr. Cole does not exhibit any of these bizarre 

speech behaviors during the telephone conversations, however. Rather, Mr. Cole sounds 

 14 Mr. Cole does not argue that he is incompetent to be executed due to a delusional belief 

that he will not be executed because of divine intervention. But to the extent that Mr. 

Cole’s statement here could be construed as belief that God will intervene to stop his 

execution, this Court has already held that such beliefs do not constitute incompetency 

under Ford. Clayton, Slip Op. at 18.
21

calm and is able to follow the conversations without abruptly changing the conversation 

to an unrelated topic. 

This Court’s finding that Mr. Cole has a rational understanding of his sentence is 

further supported by the department of correction’s records from February 25, 2015. Mr. 

Cole was seen for the reading of his execution warrant. Mr. Cole declined talking to a 

mental health professional “because his lawyer had advised him not to,” but Dr. 

Whitehead noted his observations of Mr. Cole. Dr. Whitehead reported that Mr. Cole 

“appeared to be shocked and agitated over the news of his execution” and that “[a]t times 

he appeared to close [sic] to tears” and “visibly shaken.” This reaction, as well as 

comments in his telephone conversation, shows that Mr. Cole rationally understands his 

execution is scheduled.

Further, this Court finds Mr. Cole does not lack a rational understanding of the 

reason for his sentence. According to the alleged voices, Mr. Cole is going to be 

executed because the state wants to “take him down.” As already discussed, Mr. Cole’s 

understanding of his execution, as demonstrated by recent telephone conversations and 

medical records, seriously undermines the authenticity of these voices. Further, the 

conversation on March 9, 2015, shows that Mr. Cole understands he was convicted of 

murder because he talks about the murder case. Immediately after discussing problems 

with the execution protocol, Mr. Cole explains how he believes there was a racial motive 

behind what happened to him, and then Mr. Cole and the caller discuss what they believe 

were inconstancies or lies in the prosecutor’s version of the murder. The conversation 
22

demonstrates that Mr. Cole understands he was convicted for murder and that his 

sentence is a result of the conviction.

Any such delusions that Mr. Cole may be suffering do not so impair his concept of 

reality that he cannot reach a rational understanding of his sentence and the reason for it. 

Therefore, he is not entitled to a declaration of incompetency or an evidentiary hearing 

under Ford and Panetti. 

B. Incompetency under Section 552.060.1

Mr. Cole also claims that he is incompetent to be executed under section 

552.060.1. Section 552.060.1 provides:

No person condemned to death shall be executed if as a result of mental 

disease or defect he lacks capacity to understand the nature and purpose of 

the punishment about to be imposed upon him or matters in extenuation, 

arguments for executive clemency or reasons why the sentence should not 

be carried out.

This Court has already found Mr. Cole understands the nature and purpose of his 

sentence. Dr. Logan opined that Mr. Cole suffers from a mental disease that also “causes 

him to lack the capacity to understand . . . matters in extenuation, arguments for 

executive clemency or reasons why the sentence should not be carried out.” Mr. Cole’s 

attorneys also question whether Mr. Cole could understand the clemency process. 

Once again, however, neither Dr. Logan nor his attorneys specifically explain how 

Mr. Cole is unable to understand matters in extenuation, arguments for clemency, or 

reasons why the sentence should not be carried out. During his post-conviction motion 

proceedings, Mr. Cole’s trial counsel testified that Mr. Cole was “very intelligent, 

articulate” and that the two of them “could talk about ideas, about the law, and it seemed 
23

to [trial counsel] that [Mr. Cole] understood.” Through his attorneys’ affidavits and Dr. 

Logan’s report, Mr. Cole claims that he has experienced deterioration in his mental 

condition since his trial. As previously discussed, this Court does not find Dr. Logan’s 

report to be credible and questions the genuineness of Mr. Cole’s self-reported delusions 

and the behavior described in the affidavits. 

Instead, though Mr. Cole does not specifically discuss clemency or extenuation, 

Mr. Cole’s telephone conversations demonstrate that he is able to understand and 

articulate legal issues with this case. Mr. Cole discussed problems with the execution 

drugs, including claims that drugs used are “unclean,” not sufficiently tested, and violate 

the Food and Drug Administration Act. These arguments regarding the drugs mirror the 

claims Mr. Cole raised in response to the order to show cause why the Court should not 

set an execution date. Mr. Cole was also able to explain the facts of his case during the

March 9th conversation, and Dr. Logan found Mr. Cole was able to discuss the historical 

facts of his case during his examination. Mr. Cole’s ability to understand his case and 

some of the legal issues that have been raised undercut his claim that he lacks capacity to 

understand arguments for extenuation or clemency. Considering the evidence Mr. Cole

submitted in light of evidence submitted by the state, Mr. Cole does not show that Mr. 

Cole is incapable of understanding matters in extenuation, arguments for clemency, or 

reasons why his sentence should not be carried out as required by section 552.060.1.15

 15 As previously discussed, this Court is not limited by Ford or Panetti to considering 

only a prisoner’s evidence for determination of whether a prisoner made a threshold 

showing of insanity. Similarly, section 552.060 does not limit this Court’s ability to 

consider all the evidence before it when a prisoner raises a claim under the statute.
24

Conclusion

Even assuming Mr. Cole made a substantial threshold showing of insanity, he is 

not entitled to any further process under Ford and Panetti because he has been afforded 

the opportunity to submit argument and evidence, including expert psychiatric evidence, 

and to reply to the evidence submitted by the state. The evidence submitted by Mr. Cole 

and the state show that he rationally understands his sentence and the reason for it and 

that he is capable of understanding matters in extenuation, arguments for clemency, and 

reasons why his sentence should not be carried out as required by section 552.060.1. 

Therefore, this Court denies Mr. Cole’s petition for a writ of habeas corpus on the merits 

and overrules his accompanying motion for a stay of execution as moot. 

_________________________________

 PATRICIA BRECKENRIDGE, JUDGE

Russell, C.J., Fischer and Wilson, JJ.,

concur; Stith, J., dissents in separate 

opinion filed; Draper and Teitelman, 

JJ., concur in opinion of Stith, J.
SUPREME COURT OF MISSOURI

en banc

STATE ex rel. ANDRE COLE, )

 )

Petitioner, )

 )

v. ) No. SC94880

 )

CINDY GRIFFITH, WARDEN, )

POTOSI CORRECTIONAL CENTER, )

 )

Respondent. )

DISSENTING OPINION

I. INTRODUCTION

Andre Cole petitions this Court under Panetti v. Quarterman, 551 U.S. 930

(2007), and Ford v. Wainwright, 477 U.S. 399 (1986), claiming that he has made a 

threshold showing that his execution would violate the Eighth Amendment of the United 

States Constitution because he is insufficiently competent to have a rational 

understanding of why he is being executed. The majority agrees that, once such a 

threshold showing is made, Ford and Panetti entitle Mr. Cole to a hearing on the issue of 

whether he is competent to be executed. But the majority incorrectly determines that the 

hearing to which he is entitled need not be an evidentiary one or even be in the form of a 

hearing at all. Rather, the majority concludes it simply can take the evidence Mr. Cole 

presents to this Court to support his threshold showing and use that evidence to make 

credibility determinations as to whom to believe and whose reports are entitled to more 
2

weight in the first instance and then itself decide the ultimate factual issue of whether Mr. 

Cole is incompetent. 

The majority opinion cites to no authority to support its conflation of the threshold 

showing and hearing stages of the Panetti analysis or for substituting this Court for a 

fact-finder on issues of credibility, and there is none. While Panetti held that the hearing 

need not have the formality of a trial, it reaffirmed that a “fair hearing” must follow a 

threshold showing. The weight of authority of cases addressing that issue interprets this 

as an evidentiary hearing. The majority does not cite any authority that states that an 

appellate court can consider the credibility of the threshold evidentiary showing and 

resolve factual disputes in lieu of having a hearing, as this Court now does. The majority 

is in error in all of these regards.

For these reasons, I dissent. Because Mr. Cole has made a threshold showing of 

incompetence, this Court should stay Mr. Cole’s execution and appoint a special master

who can conduct what Ford describes as a “fair hearing” to determine whether 

Mr. Cole’s current mental capacity bars his execution. 

II. ANALYSIS 

In Ford and Panetti, the United States Supreme Court set out the standard for 

granting a stay of execution in the face of a claim of incompetence. Such a claim does 

not second-guess the decision that the defendant was competent to be tried, nor does it 

attack his conviction. Panetti, 551 U.S. at 934. Rather, it assumes the validity of his 

conviction and addresses only whether mental health, medical, and other factors

occurring since the conviction have rendered him incompetent to be executed because, as 
3

the plurality in Ford explained, “the Eighth Amendment prohibits a State from carrying 

out a sentence of death upon a prisoner who is insane.” Ford, 477 U.S. at 409-10.

Ford was a plurality decision. Panetti recognized that Justice Powell’s concurring 

opinion, being the narrowest one, is controlling. Panetti, 551 U.S. at 949. In his 

concurring opinion in Ford, Justice Powell agrees that one cannot execute prisoners “who 

are unaware of the punishment they are about to suffer and why they are to suffer it.” 

Ford, 477 U.S. at 422. Panetti clarified, however, that an understanding of “why they are 

to suffer” execution requires more than a showing that the defendant knows that the 

State wishes to execute him for a murder. Rather, it requires a rational understanding of 

why this is a proper punishment for his crime. As Panetti explained:

Whether Ford’s inquiry into competency is formulated as a question of the 

prisoner’s ability to “comprehend[d] the reasons” for his punishment or as a 

determination into whether he is “unaware of ... why [he is] to suffer it,”

then, the approach taken by the Court of Appeals is inconsistent with Ford.

The principles set forth in Ford are put at risk by a rule that deems 

delusions relevant only with respect to the State’s announced reason for a 

punishment or the fact of an imminent execution, see 448 F.3d, at 819, 821, 

as opposed to the real interests the State seeks to vindicate. ... A prisoner’s 

awareness of the State’s rationale for an execution is not the same as a 

rational understanding of it. Ford does not foreclose inquiry into the latter.

Panetti, 551 U.S. at 959. 

How does a court determine whether the defendant has this kind of understanding? 

The majority opinion in the instant case says that it is not sure, for no exact standard is set 

by Ford or Panetti. But that does not mean these cases do not provide some guidance on 

this issue. Both are clear that there is a two-part test – first, a court must determine 

whether a substantial threshold showing has been made of incompetence. Id. at 949. 

And, as Panetti made clear, once that is done, then there must be a second procedural 
4

step, a “fair hearing” at which the prisoner can support his claim with further evidence:

Once a prisoner seeking a stay of execution has made a “substantial 

threshold showing of insanity,” the protection afforded by procedural due 

process includes a “fair hearing” in accord with fundamental fairness. 

Ford, 477 U.S., at 426, 428. ... This protection means a prisoner must be 

accorded an “opportunity to be heard” ... though a “constitutionally 

acceptable procedure may be far less formal than a trial.”

Id. (emphasis added) (internal citations to Justice Powell’s Ford concurrence omitted).

The United States Supreme Court thereby requires that (1) there must be 

consideration of whether there is a threshold showing, and if so, that (2) there must be a 

fair hearing. 

In Panetti, neither procedural requirement was properly met, for the state court 

failed to consider any submissions from the defendant. The state court considered only 

the state’s evidence in the form of psychiatric opinions that the defendant was competent. 

This failed to meet the most minimum requirements for due process, which Panetti said 

must include at least “the opportunity to make an adequate response to evidence solicited 

by the state court” and in a case involving experts, “an opportunity to submit psychiatric 

evidence as a counterweight to the report filed by the court-appointed experts.” Id. at 

952. Because the state court’s failure to consider any submissions from the defendant 

was clearly inadequate, Panetti said it did not need to go on and address “whether other 

procedures, such as the opportunity for discovery or for the cross-examination of 

witnesses, would in some cases be required under the Due Process Clause” because what 

was shown already violated due process. Id. 

But the majority is mistaken in taking this to be an invitation to combine the 

“threshold showing” and “fair hearing” requirements where, as here, defense counsel also 
5

submit expert opinions in support of the request for a hearing. Respectfully, this is 

completely improper and unprecedented. 

The evidence presented to date was submitted by Mr. Cole to meet his burden of 

making a threshold showing that he was entitled to a fair hearing at which he could 

provide his evidence. It was not intended to take the place of that hearing. In fact, that is 

exactly what occurred in the state court in Panetti itself, and the United States 

Supreme Court found that did not constitute an opportunity to make an adequate 

response to the state’s evidence. Id. at 948-54.

While Panetti did say that the state court below had erred in not considering 

defense experts, it did not say that the defense had not presented expert opinions, for they 

had. Panetti specifically noted that the defense had presented evidence that consisted of 

“pointed observations made by two experts the day before petitioner’s scheduled 

execution” and “references to the extensive evidence of mental dysfunction considered in 

earlier legal proceedings,” id. at 950 – in other words, precisely the type of evidence that 

Mr. Cole has submitted. Panetti did not merely say that the state court should have 

considered these opinions too in deciding the competency issue. To the contrary, Panetti

said that the evidence presented was sufficient to require a “fair hearing.” Id. at 952. 

And Panetti did not in any way suggest that a writ proceeding in the appellate court with 

no briefing or oral argument constitutes a “fair hearing.” In fact, to deny Mr. Panetti a 

hearing on this evidence, Panetti held, was so improper that the Supreme Court did not 

even need to consider whether a hearing without cross-examination or discovery would 

meet due process requirements, for in the absence of a hearing, no more needed to be 
6

said. Id. Due process had already been violated.

Confusion about these required procedural protections seems to have been created 

by this Court’s merging of the concepts of the threshold showing with the actual 

competency hearing in this Court’s recent decisions in State ex rel. Middleton v. Russell, 

435 S.W.3d 83 (Mo. banc 2014), and State ex rel. Clayton v. Griffith, __ S.W.3d__,

SC94841 (Mo. banc Mar. 14, 2015). To the extent that Middleton and Clayton can be 

read to conflate these two requirements into a single determination by a non-fact-finding 

body such as this Court, they are incorrect. 

For example, Middleton concluded that the petitioner failed to meet the substantial 

threshold showing of incompetency. Middleton did not, however, set out any sort of 

standard that must be met to satisfy that threshold requirement. Instead, Middleton

compared Mr. Middleton’s initial submissions in support of a threshold showing to the

Supreme Court’s discussion of the facts showing made by Mr. Panetti at his merits

hearing and explained that, because Mr. Middleton’s delusions were different in kind to 

those in Panetti, Mr. Middleton had not met the threshold requirement. Middleton, 435 

S.W.3d at 85-86. The majority in Clayton made the same mistake and even took it a step 

further by concluding: “the Court finds that Clayton is competent to be executed” –

despite the fact that Mr. Clayton was only attempting to meet the threshold showing for a 

fair hearing where his competency could be determined and despite the existence of 

competing expert testimony that should have called for a fair hearing at which 

competency could be determined. Clayton, slip op. at 30. 

This was wrong. The evidence considered for the purposes of that threshold 
7

determination does not provide a basis for a court to make a conclusive determination as 

to whether the petitioner actually is competent. That conclusive determination is for the 

separate hearing. And there was such a separate merits hearing in the procedural 

history described in Panetti. After the state court denied Mr. Panetti a hearing, the 

federal district court granted him one. Panetti, 551 U.S. at 937-40. At that hearing, the 

defense presented four experts who were subjected to cross-examination regarding 

Mr. Panetti’s delusions. Id. at 941-42. The district court determined that Mr. Panetti had 

not shown incompetency. Id. at 942. The court of appeals affirmed. Id. The United 

States Supreme Court reversed the court of appeals, finding that the court of appeals and 

the district court used too restrictive of a test when they considered Mr. Panetti’s claim of 

incompetence on the merits. Panetti’s analysis of the threshold showing described above 

was in response to the state court’s denial of a hearing to Mr. Panetti. Id. at 948-54. 

Then Panetti’s description of the rational understanding test and the merits of 

Mr. Panetti’s competency claim was in response to the evidentiary hearing that took place 

in federal district court and examined by the federal appellate court. Id. at 954-62. The 

Supreme Court did not blend the merits of Mr. Panetti’s competency analysis into the 

determination of whether Mr. Panetti had made a substantial threshold showing of 

incompetency.

In rejecting Mr. Cole’s argument that he presented a substantial threshold showing 

of incompetency such that he was entitled to a hearing to determine his competency, the 

majority, like in Middleton and Clayton before it, improperly conflates these issues and 

determines that Mr. Cole is competent to be executed based on the threshold showing 
8

filings rather than on evidence presented at an evidentiary hearing. Indeed, the majority 

unintentionally exacerbates the Middleton/Clayton error by actually weighing the 

evidence offered by Mr. Cole and assessing its credibility in determining whether a 

threshold showing has been made. 

Instead of weighing evidence and making credibility determinations, the question 

here is whether Mr. Cole has made a sufficient showing to trigger the need for a fair

hearing. While, as the majority notes, Panetti did not specify exactly what test the state 

must apply to determine the threshold showing, by its nature the showing must be less 

than is required in an evidentiary hearing, for it provides merely the preliminary showing 

that an evidentiary hearing is required. Although courts have struggled to pin down the 

exact phrase properly to be used to describe this standard, courts are consistent that it is 

less than that required to show incompetency itself because the threshold requirement is 

simply the basis for holding a hearing on competency. That is, because the evidentiary 

hearing is a civil proceeding, it would require proof by a preponderance of the evidence. 

The standard sufficient for a substantial threshold showing of incapacity, therefore, must 

be something less.

This is the result reached in Thompson v. Bell, 580 F.3d 423, 436 (6th Cir. 2009), 

in which the United States Court of Appeals for the Sixth Circuit held that an evidentiary 

hearing was warranted because the petitioner’s “evidence has at least created a genuine 

issue about his competency” (emphasis added). The Sixth Circuit explained that the 

“genuine issue” arose from the evidence he presented in his petition, such as medical 

reports, a documented history of delusions and psychosis, and the state’s prior efforts to 
9

appoint a conservator to make medical decisions on his behalf. Id. The court concluded 

that the submitted evidence “was undoubtedly a ‘substantial threshold showing,’ and 

therefore an evidentiary hearing should have been held.” Id. 

Similarly, Druery v. State, 412 S.W.3d 523, 539 (Tex. Crim. App. 2013), held that 

the petitioner made a substantial threshold showing of insanity and examined the 

interplay between the Panetti/Ford standard and the relevant Texas statute. There, the 

trial court held an “informal hearing” and made credibility determinations, as opposed to

holding a formal hearing on the merits. Id. at 526. Under the Texas statute, a 

“substantial showing” required more than “some evidence” of incompetency, but less 

than establishing incompetency by a preponderance of the evidence. Id. at 541.

The court emphasized that, “[i]f resolution of the competency motion requires 

resolving disputed material facts and conflicting credible evidence on the question of the 

defendant’s incompetency, then the defendant has ‘made a substantial showing,’ and 

additional fact-finding and a hearing are required.” Id. at 537 (emphasis added). Druery 

found that the petitioner there presented sufficient evidence such that he was entitled to a 

competency hearing when he alleged that, “at least some of the time,” he did not believe 

that he committed the charged crime, meaning that he was not aware that he committed 

the offense for which he was convicted, and alleged that he did not think that he would be 

executed. Id. at 541-42. See also Timberlake v. State, 858 N.E.2d 625, 629 (Ind. 2006) 

(requiring “a reasonable possibility that [the petitioner] is insane” to meet the substantial 

threshold showing of insanity standard); State v. Irick, 320 S.W.3d 284, 294 (Tenn. 2010)

(explaining that the death penalty’s retributive functions are undercut “when the prisoner 
10

suffers from a form of mental illness that distorts his or her mental state to the point that 

the prisoner’s ‘awareness of the crime and punishment has little or no relation to the 

understanding of those concepts shared by the community as a whole’” (quoting Panetti, 

551 U.S. at 958-59)).

The majority opinion seeks to distinguish Thompson and Druery on the basis that

each state has its own statute. But, of course, those respective state statutes must be 

consistent with Ford and Panetti. These courts are either applying Ford and Panetti and 

not the statute or interpreting the statute in light of the statute’s intent to apply Panetti. In 

fact, the United States Court of Appeals for Fifth Circuit in Green v. Thaler, 699 F.3d 

404, 417, n.10 (5th Cir. 2012), noted that the Texas statute at issue in Druery codifies the 

Ford requirement. That is no different from the majority’s recognition that it must apply 

Missouri’s statute, section 552.060.1, consistently with Panetti. 

Moreover, although there does not seem to be a uniform standard to determine 

when a petitioner has made a substantial threshold showing of incompetency, neither 

Ford nor Panetti, nor any of the cases cited from other jurisdictions, provides any sort of 

authority for this Court to weigh the evidence offered by a petitioner and assess its 

credibility in determining whether the petitioner actually is incompetent. This Court 

normally does not itself act as a fact-finding body, but rather, appoints a master even in a 

habeas proceeding. Indeed, in this case this Court does not even have the benefit of 

briefing or of oral argument. It is deciding factual and credibility issues solely on the 

basis of Mr. Cole’s writ petition, suggestions in support, and supporting exhibits

submitted on March 23, the State’s suggestions in opposition and supporting exhibits
11

submitted on March 27, and Mr. Cole’s reply and supporting exhibits submitted on 

March 30. 

While cross-examination and discovery might not always be necessary, a right to 

respond at a hearing to the State’s evidence concededly is. A writ proceeding in an 

appellate court with no briefing or oral argument does not constitute a “fair hearing.” 

And where, as here, the question is the meaning of and basis for an expert’s 

testimony and his qualifications, then discovery and cross-examination also are 

necessary. For instance, the majority opinion argues that forensic psychiatrist 

Dr. William Logan is not credible because his 2002 testimony was based on evidence 

presented only by the defense and an examination of Mr. Cole. The majority discounts 

Dr. Logan’s more recent report, despite the fact that it considers the evidence offered by 

both sides, and considers an examination of Mr. Cole in February 2015, because while 

the majority finds that he does not adequately understand the rationale for his execution, 

it does not state what he does understand. Of course, that is a matter that should be 

explored at an evidentiary hearing, but the request for that hearing is denied. 

The majority similarly says that it believes that Mr. Cole’s rational discussion of 

his execution in certain telephone conversations shows that he is competent. But whether 

the ability to sometimes sound rational means one understands the nature and purpose of 

one’s execution is a matter that comes within the province of expert testimony –

testimony that the State could present at a hearing, but that this Court does not have the 

psychiatric skill to assess in the absence of such a hearing. 

The majority concludes that Dr. Logan is not credible because he also testified for 
12

the defense in Middleton and Clayton. Finding experts willing to get involved in death 

penalty litigation is exceedingly difficult, and it will be all the more so if experts must be 

“one and done” – if they can testify only in a single case before being discounted as just a 

defense shill. This is particularly true here where defense counsel indicate that 

Dr. Logan, in fact, testifies for both the prosecution and the defense – but if this is in 

question, then it could be explored in cross-examination at the hearing that the majority 

refuses to permit.

The majority recognizes that a person can be delusional and incompetent to be 

executed, but says that because Mr. Cole was not incompetent and did not show mental 

illness prior to the last few years, it is not credible that he suddenly became incompetent. 

That may be so, but it may not be so. That is a matter for expert testimony – testimony 

that could be presented at the hearing that will not be held.

These are precisely the reasons that a fair hearing is required, so that the 

preliminary record used to support a threshold showing is not the sole basis of the 

competency determination, but rather, the parties can flesh out and support their views, 

demonstrate weaknesses in the views of the other side, and come to an understanding of 

the ultimate issue – whether the petitioner is competent.

Mr. Cole has presented sufficient evidence to make a threshold showing of 

incompetence. Dr. Logan has provided two reports, dated March 12, 2015, and March 

28, 2015, that find that Mr. Cole is “depressed with prominent symptoms of psychosis” 

and that he “lack[s] the capacity to understand the nature and purpose of the punishment 

about to be imposed upon him.” Dr. Logan reached this determination based on a recent 
13

2.5 hour in-person examination, a 2002 mental health evaluation of Mr. Cole, information 

provided by Mr. Cole’s attorneys, and taking into consideration exhibits filed by the State 

including offender grievance forms, prison mental health records, and transcripts of 

telephone calls made by Mr. Cole. The State contends that Dr. Logan’s findings are not 

credible because the post-conviction motion court was not persuaded by his 2002 

testimony on grounds that it was informed only by information from Mr. Cole’s 

attorneys. The State’s suggestion that his present evaluation is similarly biased is flatly 

refuted by Dr. Logan’s March 28 report, in which he makes clear that he has considered 

the State’s evidence in reaching his conclusions, as well as the additional evidence 

provided by his February 20, 2015, in person examination of Mr. Cole. Further, 

Dr. Logan has testified as an expert on the side of the prosecution as well as the defense, 

rather than being solely a defense expert.

During his February 20, 2015, examination, Mr. Cole reported to Dr. Logan that, 

in addition to experiencing feelings of depression, he is disturbed by “voices of 

individuals unfamiliar to him,” which are alternately threatening or helpful, which 

sometimes speak to him through the television and intercom, and which prevent him from 

sleeping. Mr. Cole’s current and former attorneys attest that his mental health has 

deteriorated significantly over the course of their representation. More recently, they 

have observed increasingly agitated and paranoid behavior from their client, and he has 

reported hearing voices to them as well. Attorney Carol Camp attests that during a 

February 7, 2015, meeting at which she attempted to update Mr. Cole about his case, “it 

became apparent that he did not grasp the significance of those developments or how they 
14

might affect his case. Andre went on at length about the voices he hears and his resulting 

troubles sleeping at night.” 

Contrary to the State’s assertion that Mr. Cole only reported the voices after a 

show cause order was issued in his case, his former counsel, Jessica Sutton, described the 

following behavior at their October 4, 2014, meeting, several weeks prior to the issuance 

of the show cause order: “Mr. Cole was in a highly agitated state during the meeting ... 

[he] discussed the whispers that he was hearing. Mr. Cole’s speech was at times 

unintelligible, in that he was mumbling in a quiet whisper to prevent ‘them’ from hearing 

us, despite the fact that we were in an unsupervised attorney visit.” Ms. Sutton’s 

colleague, Rebecca Woodman, attests that Ms. Sutton told her on October 4 “about Andre 

hearing voices during her visit with him.” 

Dr. Logan reports that the State’s other evidence of “malingering” – the fact that 

Mr. Cole filed grievances, reported no issues to prison mental health providers, and 

carried on several brief telephone conversations – is not inconsistent with his finding of 

psychosis, is not supported by expert testimony, and is not scientific in nature. 

The grievances filed by Mr. Cole in 2007 and 2008 do not provide evidence as to 

his current mental health condition, the only relevant inquiry in a Ford/Panetti claim. 

The more recent grievances concerning the State’s changing execution protocol were 

drafted by his attorneys. 

Likewise, prison mental health records from 2001 are irrelevant to a determination 

of Mr. Cole’s current mental health. The State’s reliance on a Dr. Whitehead’s March 

24, 2015, observation that Mr. Cole denied hearing voices is, Dr. Logan asserts, 
15

misplaced given that the wellness check lasted only a matter of minutes, took place 

through the cell door, and was not conducted by a person of trust, and that 

acknowledging the voices would have invited unwanted treatment. 

Certainly, the State also presented strong contrary evidence, detailed by the 

majority opinion. And, were a fair hearing held, both the defense and the State might 

well present additional evidence that would support their respective positions, evidence 

as to which this Court can only guess at this point. My point is not that I believe 

Mr. Cole’s evidence over that of the State, but that this is not a determination that I or my 

colleagues should make in the absence of a reference of this issue to a master for an 

evidentiary hearing. Whether the fact-finder at a fair hearing would find for one party or 

the other I do not presume to know. Neither should the majority. I would hold only that 

a threshold showing has been made and that this Court should refer this matter to a 

master for a fair hearing at which evidence may be presented. 

____________________________ 

 LAURA DENVIR STITH, JUDGE