The scan of Cecil Clayton’s brain succinctly tells the story. In the front left corner of his skull, where his frontal lobe would normally be found, there is a gaping black hole about the size of a fist.



In 1972, Clayton was working on a log in a lumberyard in Purdy, Missouri, when a piece of wood broke off the saw mill and struck him in the head. It pierced his skull, sending shards of bone deep into his brain, and in the process of saving his life surgeons were forced to remove a fifth of his frontal lobe – a vital area that controls judgment, inhibition and impulsive behavior.

The accident had a devastating impact. A man who before it occurred had been a teetotal devoted husband and father of five, who preached and sang the gospel in his own ministry, developed severe memory loss and despair, sank into alcoholism and split from his wife, had hallucinations and displayed bouts of violent rage.

Twenty-four years after the accident he shot and killed a Purdy police officer, Christopher Castetter. When he was arrested, Clayton displayed signs of confusion, saying of his victim that “he shouldn’t have smarted off to me”, yet adding “but I don’t know because I wasn’t out there.”

The scan of Clayton’s brain. Photograph: Supplied

Under the constitution of the United States it is forbidden to execute anyone who is insane and incapable of understanding the fact of his impending death and the reason for it. Under separate but equally clear rulings, it is also prohibited to execute an intellectually disabled prisoner.

Yet at 6pm on Tuesday Missouri time, barring last-minute intervention, Clayton – a man who as a result of losing part of his brain has been deemed by a succession of medical experts to be insane and intellectually disabled – will be put to death by lethal injection. Attempts by his lawyers to have the execution delayed have so far failed, with the Missouri supreme court refusing even to allow a hearing into the inmate’s mental condition to consider whether he is entitled to protection under the eighth amendment of the US constitution that debars “cruel and unusual punishment”.

The evidence of Clayton’s mental impairments – and hence his constitutional right to protection – is considerable, dating back many years. In addition to that image of his brain scan, psychological evaluations stretching back to 1978 have chronicled the after-effects of his severe brain trauma.

He has the reading ability of a nine-year-old, has visual and auditory hallucinations in which he is convinced that he is accompanied by a man and a woman wherever he goes, is incapable of simple tasks such as ordering food from the prison commissary, and is under the delusion that he will never be executed because God will intervene and free him so that he can return to his preaching and gospel singing.

Three forensic psychologists have spent time with Clayton in multiple visits spanning 2005 to this year, and have unanimously and consistently concluded that he is entitled to constitutional protections because of his mental incompetence. One of the psychologists, Daniel Foster, has written: “He is not simply incompetent legally, he would be unable to care for himself or manage basic self care, were he not in a structured environment that takes care of him … he still does not comprehend, appreciate nor understand its approaching date for him”.

Six times, Clayton’s lawyers have petitioned the Missouri supreme court, the highest judicial panel in the state, calling for a full review of his mental condition to see whether he is entitled to eighth amendment protections. Each time they have cited the expert evidence of his mental dysfunction, but each time the court has rebuffed the request saying that the prisoner had not met the level of impairment necessary to justify a hearing.

In effect, the inmate has found himself trapped in a Catch-22 where he has been unable to convince the Missouri justices that he is worthy of their attention. His final plea to the US supreme court, on which his fate now hangs, says: “The Missouri supreme court essentially required Mr Clayton to prove his incompetency in order to obtain a hearing on his incompetency.”

In a dissenting opinion from the Missouri court, Laura Denvir Stith said: “The denial of such a hearing deprives Mr Clayton of a fair opportunity to show that the constitution prohibits his execution.”

Missouri has become one of America’s most aggressive death penalty states. Since November 2013 it has been executing prisoners at the rate of almost one a month, a rate rivaled only by Texas.

Should Clayton’s execution go ahead, he would be the 14th death row inmate to be judicially killed in the past 17 months.