Okla. Stat. tit. 22, § 22-1005.1

- Examination.

A. For purposes of this act, "mentally incompetent to be

executed" means that because of a mental condition the person is

presently unable to have a rational understanding:

1. Of the reason he or she is being executed; and

2. That he or she is to be executed and that execution is

imminent.

B. There shall be a presumption that a person who has received

a judgment of death is mentally competent to be executed.

C. If, after the Attorney General files a motion to set an

execution date, the attorney for the person has good reason to

believe that the person may be mentally incompetent to be executed,

the attorney may file a motion in the Court of Criminal Appeals

setting forth the facts giving rise to the belief that the person

may be mentally incompetent to be executed and requesting the court

to order that the person be examined for mental competency to be

executed.

D. A motion alleging that a person is mentally incompetent to

be executed shall be filed initially when filing a written response

to the motion of the Attorney General to set an execution date. The

person shall have seven (7) days from the filing of the motion of

the Attorney General to file a response and raise the issue of

mental incompetency.

E. A motion alleging that a person is mentally incompetent to

be executed shall identify the proceeding in which the person was

convicted and shall clearly set forth alleged facts in support of

the assertion that the person is presently mentally incompetent to

be executed. The person shall attach affidavits, records, or other

evidence supporting such allegations or shall state a reason for

which such items are not attached. The person shall identify any

previous proceeding in which the person challenged his or her

competency in relation to the conviction and judgment of death

including any challenge to the competency of the person to be

executed, competency to stand trial, or sanity at the time of the

offense.

F. In the order of the Court of Criminal Appeals setting the

execution date, the Court shall remand the issue of mental

competency to be executed to the trial court where the person was

originally tried and sentenced. Mental competency of a person to be

executed shall not be considered unless and until an execution date

has been scheduled.

G. In addition to the authority set forth in subsection C of

Section 1001.1 of this title, the Court of Criminal Appeals may

issue stays of execution as necessary to permit inquiry into the

mental competency of the person to be executed.

Oklahoma Statutes - Title 22. Criminal Procedure Page 356

H. On receipt of the remand, the trial court shall hold an

evidentiary hearing to determine whether the person has raised a

substantial doubt as to the competency of the person to be executed.

Unless the Court of Criminal Appeals issues a stay of execution, the

hearing shall be held and a decision shall be rendered before the

scheduled execution date of the person. The Attorney General shall

represent the state at the evidentiary hearing. If the trial court

determines the person has failed to make a substantial showing that

he or she is mentally incompetent to be executed, the court shall

deny the motion and the execution shall proceed. If the trial court

determines the person has made a substantial showing that he or she

is mentally incompetent to be executed, the trial court shall order

an examination of the person by the Department of Mental Health and

Substance Abuse Services or by a qualified forensic examiner

designated by the Department of Mental Health and Substance Abuse

Services. By filing the motion, the person shall be deemed to

consent to submit to an examination as required by this section for

the purpose of assessment of mental competency to be executed. In

addition, the person waives any claim of privilege with respect to,

and consents to the release of, all mental health and medical
er

designated by the Department of Mental Health and Substance Abuse

Services. By filing the motion, the person shall be deemed to

consent to submit to an examination as required by this section for

the purpose of assessment of mental competency to be executed. In

addition, the person waives any claim of privilege with respect to,

and consents to the release of, all mental health and medical

records relevant to whether the person is mentally incompetent to be

executed. If the person refuses to be examined by the expert of the

state, the trial court shall not consider any expert evidence

offered by the person concerning his or her competency.

I. The qualified forensic examiner or examiners shall receive

instructions to examine the person to determine whether the person

has a rational understanding:

1. Of the reason he or she is being executed; and

2. That he or she is to be executed and that execution is

imminent.

J. Within a time ordered by the trial court not to exceed

forty-five (45) days, the qualified forensic examiner or examiners

shall provide copies of their reports to the attorney representing

the state, the attorney representing the person, and the trial

court.

K. After all examinations are complete, the trial court shall

conduct a hearing within thirty (30) days to determine whether the

person is mentally competent to be executed. The person shall

overcome the presumption that he or she is competent to be executed

by a preponderance of the evidence.

L. If the trial court finds that the person is competent to be

executed, the warden shall proceed to execute the judgment as

certified in the warrant. If the prior execution date has expired

or the Court of Criminal Appeals has issued a stay, a new execution

date shall be set as provided in subsection F of Section 1001.1 of

this title.

Oklahoma Statutes - Title 22. Criminal Procedure Page 357

M. If the trial court finds that the person is mentally

incompetent to be executed, the following procedures shall be

followed:

1. The trial court shall issue notice to the Court of Criminal

Appeals of such findings at which time the Court of Criminal Appeals

shall issue a stay of execution if one has not already been entered.

2. The trial court shall also order the Department of Mental

Health and Substance Abuse Services to determine through

consultation with the Department of Corrections, the place for the

person to be held for safe confinement until his or her competency

is restored.

3. The trial court shall further order the Department of Mental

Health and Substance Abuse Services to provide treatment, therapy,

or training for the person to achieve competency. The Department of

Mental Health and Substance Abuse Services may designate an entity

with qualified personnel to provide competency restoration services

on behalf of the Department. Competency restoration services shall

begin within no more than thirty (30) days after the order issued by

the trial court.

4. The Department of Mental Health and Substance Abuse

Services, or a qualified forensic examiner designated by the

Department, shall reevaluate the mental competency of the person to

be executed no more than four (4) months after competency

restoration services have commenced. A copy of the report following

reevaluation shall be provided to the attorney representing the

state, the attorney representing the person, and the trial court.

If the qualified forensic examiner finds the person to be mentally

competent to be executed, the trial court shall hold a hearing to

determine whether the person is mentally competent to be executed

within forty-five (45) days after receipt of the report. The state

must overcome by competent evidence a rebuttable presumption of

continued incompetence.

5. After such hearing, if the person is found to be mentally

competent to be executed, the trial court shall notify the Court of
ted, the trial court shall hold a hearing to

determine whether the person is mentally competent to be executed

within forty-five (45) days after receipt of the report. The state

must overcome by competent evidence a rebuttable presumption of

continued incompetence.

5. After such hearing, if the person is found to be mentally

competent to be executed, the trial court shall notify the Court of

Criminal Appeals which shall vacate the stay of execution. The

warden shall proceed to execute the judgment as certified in the

warrant. If the prior execution date has expired, a new execution

date shall be set as provided in subsection F of Section 1001.1 of

this title.

6. If the trial court determines that the person remains

mentally incompetent to be executed, the trial court shall enter an

order directing the Department of Mental Health and Substance Abuse

Services to continue to provide treatment, therapy, or training for

the person to achieve competency. The Department may designate an

entity with qualified personnel to provide competency restoration

services on behalf of the Department.

Oklahoma Statutes - Title 22. Criminal Procedure Page 358

7. The entity providing competency restoration services shall

monitor the progress of the person and immediately provide written

notification to the attorney representing the state, the attorney

representing the person, and the trial court if it appears the

person facing execution may have regained mental competency to be

executed. Upon receipt of such notice, the trial court shall order

the Department of Mental Health and Substance Abuse Services, or a

qualified forensic examiner designated by the Department, to

immediately reevaluate the mental competency of the person to be

executed and submit a report within thirty (30) days of the order.

The trial court shall then schedule an evidentiary hearing, to be

held within thirty (30) days, to determine whether the person is

mentally competent to be executed. The state must overcome by

competent evidence a rebuttable presumption of continued

incompetence.

8. After the hearing, if the person is found to be mentally

competent to be executed, the trial court shall notify the Court of

Criminal Appeals which shall vacate the stay of execution. The

warden shall proceed to execute the judgment as certified in the

warrant. If the prior execution date has expired, a new execution

date shall be set as provided in subsection F of Section 1001.1 of

this title.

9. If the person is found not mentally competent to be

executed, restoration services shall continue as provided in

paragraphs 3 and 4 of this subsection. The entity providing

competency restoration services shall prepare periodic reports,

every six (6) months, indicating what services are being provided

and the response of the person, if any, to treatment. These reports

shall be provided to the attorney representing the state, the

attorney representing the person, and the trial court. The entity

providing competency restoration services shall be under a

continuing duty to comply with the provisions of paragraph 7 of this

subsection.

N. The provisions of the Criminal Discovery Code, Section 2002

of this title, shall apply, as relevant, to evidentiary hearings

conducted under the provisions of this section.

O. If any intervening change in the mental competency of the

person to be executed occurs after the seven (7) day deadline to

initiate proceedings required pursuant to subsection D of this

section, the person may file a motion alleging he or she is mentally

incompetent to be executed with the Court of Criminal Appeals. An

intervening change shall be a condition that has not and could not

have been presented in a timely motion because the factual basis for

the claim was not ascertainable through the exercise of reasonable

diligence. If the Court of Criminal Appeals determines that an
on, the person may file a motion alleging he or she is mentally

incompetent to be executed with the Court of Criminal Appeals. An

intervening change shall be a condition that has not and could not

have been presented in a timely motion because the factual basis for

the claim was not ascertainable through the exercise of reasonable

diligence. If the Court of Criminal Appeals determines that an

intervening change has occurred, the procedures set forth in this

section shall apply.

Oklahoma Statutes - Title 22. Criminal Procedure Page 359

P. Any filing made pursuant to this section shall be made in

good faith as provided in Rule 9.7(C), Rules of the Court of

Criminal Appeals, of this title, Ch. 18, App.

Q. No portion of the record in proceedings under the provisions

of this section shall be filed under seal.

R. Upon the effective date of this act, any amendments made to

the provisions of this section shall be applied retroactively.