77-19-204 - Order for hearing -- Examinations of inmate -- Scope of examination and report.
77-19-204. Order for hearing -- Examinations of inmate -- Scope of examinationand report.
(1) When a court has good reason to believe an inmate sentenced to death is incompetentto be executed, it shall stay the execution and shall order the Department of Human Services toexamine the inmate and report to the court concerning the inmate's mental condition.
(2) (a) The inmate subject to examination under Subsection (1) shall be examined by atleast two mental health experts who are not involved in the inmate's current treatment.
(b) The Department of Corrections shall provide information and materials to theexaminers relevant to a determination of the inmate's competency to be executed.
(3) The inmate shall make himself available and fully cooperate in the examination bythe Department of Human Services and any other independent examiners for the defense or thestate.
(4) The examiners shall in the conduct of their examinations and in their reports to thecourt consider and address, in addition to any other factors determined to be relevant by theexaminers:
(a) the inmate's awareness of the fact of the inmate's impending execution;
(b) the inmate's understanding that the inmate is to be executed for the crime of murder;
(c) the nature of the inmate's mental disorder, if any, and its relationship to the factorsrelevant to the inmate's competency; and
(d) whether psychoactive medication is necessary to maintain or restore the inmate'scompetency.
(5) The examiners who are examining the inmate shall each provide an initial report tothe court and the attorneys for the state and the inmate within 60 days of the receipt of the court'sorder. The report shall inform the court of the examiner's opinion concerning the competency ofthe inmate to be executed, or, in the alternative, the examiner may inform the court in writingthat additional time is needed to complete the report. If the examiner informs the court thatadditional time is needed, the examiner shall have up to an additional 30 days to provide thereport to the court and counsel. The examiner shall provide the report within 90 days from thereceipt of the court's order unless, for good cause shown, the court authorizes an additionalperiod of time to complete the examination and provide the report.
(6) (a) All interviews with the inmate conducted by the examiners shall be videotaped,unless otherwise ordered by the court for good cause shown. The Department of Correctionsshall provide the videotaping equipment and facilitate the videotaping of the interviews.
(b) Immediately following the videotaping, the videotape shall be provided to theattorney for the state, who shall deliver it as soon as practicable to the judge in whose court thecompetency determination is pending.
(c) The court shall grant counsel for the state and for the inmate, and examiners who areexamining the inmate under this part access to view the videotape at the court building where thecourt is located that is conducting the competency determination under this part.
(7) Any written report submitted by an examiner shall:
(a) identify the specific matters referred for evaluation;
(b) describe the procedures, techniques, and tests used in the examination and thepurpose or purposes for each;
(c) state the examiner's clinical observations, findings, and opinions on each issuereferred for examination by the court, and indicate specifically those issues, if any, on which the
examiner could not give an opinion; and
(d) identify the sources of information used by the examiner and present the basis for theexaminer's clinical findings and opinions.
(8) (a) When the reports are received, the court shall set a date for a competency hearing,which shall be held within not less than five and not more than 15 days, unless the court extendsthe time for good cause.
(b) Any examiner directed by the Department of Human Services to conduct theexamination may be subpoenaed to provide testimony at the hearing. If the examiners are inconflict as to the competency of the inmate, all of them should be called to testify at the hearingif they are reasonably available.
(c) The court may call any examiner to testify at the hearing who is not called by theparties. An examiner called by the court may be cross-examined by counsel for the parties.
(9) (a) An inmate shall be presumed competent to be executed unless the court, by apreponderance of the evidence, finds the inmate incompetent to be executed. The burden ofproof is upon the proponent of incompetency at the hearing.
(b) An adjudication of incompetency to be executed does not operate as an adjudicationof the inmate's incompetency to give informed consent for medical treatment or for any otherpurpose, unless specifically set forth in the court order.
(10) (a) If the court finds the inmate incompetent to be executed, its order shall containfindings addressing each of the factors in Subsections (4)(a) through (d).
(b) The order finding the inmate incompetent to be executed shall be delivered to theDepartment of Human Services, and shall be accompanied by:
(i) copies of the reports of the examiners filed with the court pursuant to the order ofexamination, if not provided previously;
(ii) copies of any of the psychiatric, psychological, or social work reports submitted tothe court relative to the mental condition of the inmate; and
(iii) any other documents made available to the court by either the defense or the state,pertaining to the inmate's current or past mental condition.
(c) A copy of the order finding the inmate incompetent to be executed shall be deliveredto the Department of Corrections.
Enacted by Chapter 137, 2004 General Session