Whether the Eighth Amendment and Due Process Clause prohibit executing a prisoner who, due to severe mental illness, lacks rational understanding of the reason for his execution, and whether a state court must provide an evidentiary hearing before a neutral fact-finder to determine competency to be executed under Panetti v. Quaterman

in the petition regarding what process is due to mentally ill condemned prisoners who raise Panetti claims has not been definitively resolved and has created conflicts between lower federal and state courts. The issues in this case present substantial constitutional questions that will undoubtedly arise in future cases and are, therefore, worthy of discretionary review. SUGGESTIONS IN SUPPORT OF MOTION FOR A STAY OF EXECUTION The Missouri Supreme Court denied petitioner a full and fair hearing where a trier of fact could hear and consider all of petitioner’s evidence and any rebuttal from the state in order to determine whether he is too mentally ill to be executed under Panetti. The manner in which the Missouri Supreme Court denied petitioner’s habeas corpus petition on a paper record, without giving petitioner an evidentiary hearing before a Special Master pursuant to Mo. S. Ct. Rule 68.03, also raises other substantial constitutional issues that this Court should address. Where any litigant requests a stay of a judgment, a reviewing court must engage in a balancing of interests. This analysis necessarily involves the fundamental conflict between the harm to the party seeking a stay versus the prevailing party’s interest in the finality of the judgment. In death penalty cases, because the stakes are much higher, any uncertainties should be resolved in the condemned man’s favor. In Commodity Futures Trading Comm. v. British Am. Comm., 434 U.S. 1318 (1977) (Marshall, J., in chambers), Justice Marshall upheld a lower court stay by stressing the “potentially fatal consequences” to the businesses involved. Jd. at 1321. The destruction of a human life should be undertaken with even more reluctance than the possible bankruptcy of a corporation. In considering this petition and petitioner’s request for a stay, this Court should take into account an overriding concern in addition to the obvious fact that Johnny Johnson will be irreparably harmed if he forfeits his life. This Court should also consider the irreparable harm to the public’s confidence in the integrity of the criminal justice system if it permits a profoundly insane man to be executed without due process where there is compelling evidence he does not rationally understand why he is facing execution. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (The “traditional” standard for a stay also requires a reviewing court to determine “where the public interests lie.”) Any countervailing arguments from respondent regarding undue delay and the finality of judgments pale in comparison. A. PETITIONER AND HIS POST-CONVICTION COUNSEL HAVE NOT BEEN DILATORY IN LITIGATING HIS PANETTI CLAIM. Respondent argued in the court below against granting a stay of execution and giving petitioner a hearing that petitioner has been dilatory in not litigating his Panetti claim earlier. Nothing could be further from the truth. Any argument from respondent about delay or other possible procedural hurdles to this Court’s orderly review of this case are trumped by petitioner’s substantial claim that he is too mentally ill to be executed. All of the other relevant factors of irreparable harm and