Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, March 29, 1995 TAG: 9503290088
SECTION: VIRGINIA PAGE: C-3 EDITION: METRO
SOURCE: ANN DONAHUE STAFF WRITER
DATELINE: LENGTH: Medium
Circuit Judge William Sweeney made his ruling after hearing testimony from medical experts, family members and Stewart himself.
"I need not be positive, but I should at least be satisfied that Mr. Stewart is competent," Sweeney said. "I cannot afford to be wrong here."
Earlier this month, Stewart had requested that his attorneys allow him to waive his right to appeal his death sentence.
Stewart was convicted in 1992 of murdering his wife and 5-month-old son. Stewart shot both at point-blank range at their home in Huddleston.
The most emotional testimony of the day came when Stewart took the stand early in the proceedings.
"I've made my peace with the Lord," Stewart said. "I want to lay down my life.
"I believe, in my heart, it is a just sentence. I have already made funeral arrangements."
Stewart's statements profoundly affected members of his family who attended the hearing. His sister, Lynn Stewart Mayers, sobbed loudly. His mother, Jelene Rauch, wiped her eyes repeatedly with a tissue.
Later in the hearing, they took the stand to tell of their doubts about his competence.
Mayers vehemently opposed her brother's request to waive his appeals.
"That's what he wants," she said. "That's not what I want."
When Mayers left the witness stand, she spoke to Stewart as she passed the table where he sat.
"You can't fight for yourself," Mayers said.
Stewart's sister-in-law, Brenda Stewart, said he hated prison.
"It was hell where he was at, and he just wanted to go on to a different life - a life in heaven," she said.
The last member of Stewart's family to take the stand was his mother.
"I felt like Kenny's not capable of making this decision," Rauch said. "Kenny has made up his mind to die. That's what he wants."
Assistant Attorney General Robert Harris argued that Stewart had both the physical and mental capability to make the decision to waive all appeals before his scheduled April 12 execution.
"There is no substantial reason for the court to doubt Kenneth Stewart's competence," Harris said. "The law presumes competence."
Controversy arose when two medical experts who interviewed Stewart at the same time on March 7 came up with vastly different interpretations of his condition.
Dr. Hadley Osran and Carole Farnham are colleagues at Central State Hospital in Petersburg. Although a joint report originally was requested, the two differed so greatly in their analysis that they testified on opposite sides Tuesday.
Osran, medical director of the forensic unit, concluded that Stewart suffers from major depression in partial remission. He testified that Stewart's family has a history of mental illness, so he may be genetically predisposed to it.
Osran concluded by saying that alternate forms of medication, such as lithium, that have proven successful on other members of Stewart's family should be used to treat Stewart before his competence is determined.
Farnham works in the long-term intensive treatment unit. She deals primarily with people whose mental illness does not respond to medication.
She concluded that Stewart does not have a mental defect and was competent when he declared his desire to waive all appeals.
To verify her opinion, she also talked to nurses who interacted daily with Stewart. She said the nurses told her that Stewart was "pleasant, polite, cooperative ... thoughtful."
"That's important because they had no ax to grind," Farnham said.
She also cited his activities inside prison as proof of his stability. Stewart has started Bible study while in jail, and he sponsored a child in Ethiopia through a foster care program.
The next court action in this case is scheduled for 90 days from Tuesday, when Stewart's lawyers intend to file a petition challenging the legality of his conviction and sentence.
by CNB