Dallas man to die for killing daughters while mom listened

This undated photo provided by the Texas Department of Criminal Justice shows John David Battaglia who is scheduled for execution Thursday, Feb. 1, 2018, in Huntsville, Texas, for the May 2001 slayings of his two daughters. (Texas Department of Criminal Justice via AP)

HUNTSVILLE, Texas (AP) — A former Dallas accountant condemned for fatally shooting his two young daughters while their mother listened helplessly on the phone is looking to the U.S. Supreme Court to spare his life.

John David Battaglia, 62, is set for execution Thursday evening for the May 2001 killings of his 9-year-old daughter, Faith, and her 6-year-old sister, Liberty.

Battaglia's attorneys have asked the Supreme Court to stop the punishment and review his case, contending that Battaglia was delusional and mentally incompetent for execution.

Battaglia would be the nation's third prisoner executed this year, all in Texas. In 2017, 23 convicted killers were executed in the U.S., including seven in Texas, which was more than any other state.

Hours before Battaglia's scheduled punishment, the 5th U.S. Circuit Court of Appeals rejected an appeal that argued a lower court improperly refused his lawyers money to hire an expert to further examine legal claims he's mentally incompetent for execution.

The Supreme Court has ruled that prisoners can be executed if they're aware the death penalty is to be carried out and have a rational understanding of why they're facing that punishment.

Attorneys for Battaglia contend that he doesn't have that understanding and that the state's highest court, the Texas Court of Criminal Appeals, misapplied the Supreme Court's guidance when it ruled that Battaglia is competent. They also argue that a federal judge improperly denied their requests for additional money to hire an expert to collect information about his competency, which has been the focus of prolonged appeals in his case.

State attorneys argued that the Texas courts ensured proper legal standards were followed and that Battaglia had been provided expert help and a court hearing in accordance with Supreme Court precedents.

A state judge and the state appeals court described Battaglia as highly intelligent, competent, not mentally ill and faking mental illness to avoid execution.

Testimony at a hearing showed Battaglia used the prison library to research capital case rulings on mental competence and discussed with his father during a phone call from jail the "chess game" of avoiding execution. State Judge Robert Burns, who found him competent, said Battaglia's intelligence and education — he has a master's degree — shows he's not a "typical inmate" and has the "motive and intellectual capability to maintain a deliberate ploy or ruse to avoid his execution."

According to prosecutors, Battaglia became enraged that his estranged wife, Mary Jane Pearle, notified police about his harassment and he used the scheduled visit with their daughters to act on his anger. Pearle, who had gone to dinner, returned a call from one of her daughters and heard Faith pleading with her father, who put the call on speakerphone.

"No, daddy, please don't, don't do it!" Faith begged.

Pearle yelled into the phone for the children to run, then heard gunshots.

"Merry ... Christmas," Battaglia told Pearle, the words of the holiday greeting derisively divided by an obscenity.

There were more gunshots. Pearle called 911.

At the time of the shootings, Battaglia was on probation for a Christmas 1999 attack on Pearle. His profanity-laced Christmas greeting to Pearle was an apparent reference to that.

Faith was shot three times, Liberty five. Hours later, Battaglia was arrested outside at a tattoo shop where he had two large red roses inked on his left arm to commemorate his daughters. It took four officers to subdue him. A fully loaded revolver was found in his truck and more than a dozen firearms were recovered from his apartment.

Battaglia told The Dallas Morning News in 2014 his daughters were his "best little friends" and that he had photos of them displayed in his prison cell.

"I don't feel like I killed them," he said. "I am a little bit in the blank about what happened''