13-4022

13-4022. Determining competency

A. If after a sentence of death is imposed the director of the state department of
corrections, the prisoner's attorney or an attorney for the state has good reason to
believe that the prisoner may be mentally incompetent to be executed, the director, the
prisoner's attorney or an attorney for the state may file a motion in the superior court
in the county in which the prisoner is located setting forth the facts relating to the
prisoner's conviction and sentence and the facts giving rise to the belief that the
prisoner may be mentally incompetent to be executed and requesting the court to order
that the prisoner be examined for mental competency to be executed.

B. A stay of execution may not be granted by the superior court on the filing of a
motion for examination of competency. If a stay is desired before the superior court
rules on the motion, an application for a stay shall be submitted to the Arizona supreme
court.

C. On receipt of a motion for examination of competency, the superior court shall
determine if the motion is timely, as prescribed by section 13-4024, and presents
reasonable grounds for the requested examination. If the motion is timely and presents
reasonable grounds for the requested examination, the court shall appoint experts
pursuant to the Arizona rules of criminal procedure. The appointed experts shall make
copies of their reports available to all of the parties. The experts' reports shall
indicate whether the prisoner suffers from a mental disorder, illness, defect or
disability such that the prisoner is incompetent to be executed and would benefit from
competency restoration treatment. The parties shall also disclose to the appointed
experts and to each other the names and addresses of any other previously undisclosed
mental health experts who have examined the prisoner and the results of the examinations.

D. The court may order the prisoner to submit to physical, neurological,
psychological or other examinations or evaluations that are reasonably necessary to
adequately determine the prisoner's mental competency to be executed. A prisoner who is
subject to an examination or evaluation for mental competency to be executed waives all
privileges concerning information relevant to the competency determination. The prisoner
shall submit to and cooperate in all examinations or evaluations ordered by the court,
regardless of which party appointed the mental health experts. If the prisoner refuses
to be examined by the state's mental health experts, the court shall not consider any
expert evidence offered by the prisoner concerning the prisoner's competency. Evidence
obtained under this article is not admissible at any proceeding to determine guilt or
innocence unless the defendant presents evidence intended to rebut the presumption of
sanity or otherwise consents to admission of the evidence.

E. After the examinations are completed, the court may conduct a hearing to
determine the prisoner's competency to be executed. At the hearing, all the parties may
present evidence, cross-examine witnesses and present argument or by stipulation may
submit the matter for the court's determination on the basis of the experts' reports or
other evidence.

F. Prisoners who are sentenced to death are presumed competent to be executed. A
prisoner may be found incompetent to be executed only on clear and convincing evidence of
incompetency.

G. The superior court shall specifically state its findings on the record. If the
court finds that the prisoner is competent, the director of the state department of
corrections shall execute the judgment as specified in the warrant. If the court finds
that the prisoner is incompetent, the court shall suspend the execution and shall
immediately transmit a copy of its order to the supreme court. If the prisoner is
incompetent to be executed, the court shall determine whether the prisoner suffers from a
mental disorder, illness, defect or disability and shall order competency restoration
treatment. The prisoner shall remain in the custody of the state department of
corrections until the time for review has expired or a supreme court review is
completed. If no review is sought or the supreme court upholds the finding of
incompetency to be executed, the director of the state department of corrections shall
transfer the prisoner to a licensed behavioral health or mental health inpatient
treatment facility operated by the state department of corrections for competency
restoration treatment. The prisoner shall remain confined in the licensed behavioral
health or mental health inpatient treatment facility operated by the state department of
corrections until the prisoner becomes competent to be executed.

H. Pursuant to subsection G of this section, the department of health services
shall provide competency restoration treatment, including prescribing medication, to a
prisoner found incompetent to be executed. The person who supervises the treatment of a
prisoner found incompetent to be executed shall submit a written report to the court, the
attorney general and the prisoner's attorney when the person believes the prisoner is
competent to be executed. The written report shall include at least the following
information:

1. The name of each mental health expert who examines the prisoner.

2. The description of the nature, content, extent and results of the examination
and any tests conducted.

3. The facts on which the findings are based.

4. An opinion as to the prisoner's competency to be executed.

I. Within five days after the superior court grants or denies a motion for
examination or rules whether the prisoner is competent, a party may file with the Arizona
supreme court a petition for special action to obtain review of the superior court's
decision.

J. The clerk of the court shall prepare a statement of the costs incurred by the
county. The judge shall certify the statement and shall forward it to the governor for
approval. After approval, the governor shall order that the costs be paid to the county
treasurer in the county in which the hearing was held from monies appropriated to the
state department of corrections.