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Recently, the U.S. Supreme Court issued a pair of opinions that involved capital punishment. One case allowed death-row inmates to introduce DNA evidence that might exonerate them. The second decision permitted death-row inmates to challenge lethal injection procedures as violations of their civil rights. Several days before the justices issued these rulings, Virginia Governor Timothy Kaine depended on gubernatorial clemency authority to address the claim of another death-row inmate that he should not be executed. Kaine took the unusual steps of invoking his clemency power and suspending the execution of Percy Levar Walton for six months to ascertain whether “his mental capacity imposes a bar to his execution” under the U.S. Supreme Court’s 1986 mandate in Ford v. Wainwright. The governor properly relied on the clemency power to suspend execution because the Supreme Court has interpreted the Constitution to mean that a defendant convicted of murder “must have sufficient mental capacity to understand the punishment he is about to suffer and why he is to suffer it.” Yet the unusual nature of Kaine’s action means that no procedures exist for performing the competence inquiry. Kaine should expeditiously create a process to ascertain Walton’s competence for execution under the Constitution. Setting up a procedure Because the commonwealth has not undertaken this exact type of proceeding, it lacks any formal procedures for conducting it. Nevertheless, appropriate measures can be developed that will facilitate the discharge of this gubernatorial responsibility. They can be derived from existing similar fact-finding entities and analogous procedures. The fact-finding bodies encompass federal and state courts as well as workers’ compensation boards and medical malpractice panels. The procedures concomitantly include federal and state court and administrative agency rules of practice. The governor should employ a transparent process to appoint promptly an entity that resembles a special master in federal and state judicial proceedings. This body should act in an advisory capacity to Kaine, as he resolves the issues which are presented by Walton’s clemency petition. Multiple individuals would be preferable because “three heads are better than one.” A three-person group should be constituted, which might include a retired federal or state judge, an expert in psychiatric medicine and an attorney with expertise in relevant legal or medical issues. The decision-makers must be expert, impartial and independent. These decision-makers should allow counsel for Walton and Virginia to conduct expert medical examinations of Walton in preparation for testimony regarding his competence before the panel. The decision-makers may also wish to appoint their own expert, impartial, independent witnesses to perform similar assessments. Once those examinations have been conducted, the experts should testify on Walton’s competence, be subject to cross-examination by the attorneys for Walton and for the state, and be subject to questioning by the three decision-makers. The panel should apply the procedural and evidentiary rules that judges now use in state courts of record. Once the panel has heard all of the relevant evidence, the decision-makers should apply the Supreme Court’s legal mandate on competence to the facts that they have heard. The panel must then issue a report which includes its findings and suggestions for the governor. Kaine should resolve Walton’s clemency petition by reviewing that report and reaching a final determination on whether Walton is competent to be executed. If Kaine follows these suggestions, he will be able to name the panel expeditiously, decide the issue of competence in accord with the Constitution and resolve the clemency petition fairly and promptly. These actions may well serve as a national model for other governors who confront analogous situations relating to the imposition of capital punishment. Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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