We've got an execution date set for one of our guys in August and I'm trying to come up with a way to reduce the chaos associated with the inevitable last day claims of mental retardation and insanity.

I was thinking about asking the Court of Criminal Appeals to impose a scheduling order to make the applicant present these complaints in a timely fashion or not at all. I noticed that the Fifth Circuit has a local rule that requires an applicant to file his appeal or request for a stay at least five days before the excecution date. Rule 8.10.

Anybody tried anything like this or think this is crazy? The last execution I did, we correctly guessed that the defendant would raise a claim of insanity on the day of execution and we were able to deal with it -- but it was still a riduculous amount of work for a frivoluous complaint.

Thanks.

This reply is a little late, but probably not very useful anyway. I don't know of any way to force defense attorneys to timely file last minute subsequent writs and motions to stay. In fact, the 5th Circuit rule you're talking about was blatantly violated by Yokamon Hearn in March 2004 when he filed a motion for stay less than 48 hours before his execution. The 5th Circuit granted him his stay anyway, and then granted him full relief 2 days ago--saying he has the right to counsel under federal law to investigate a possible MR claim. If there's one thing I've learned doing capital writ work, it's that procedural rules don't count for ANYTHING when the death penalty is involved.

One thing we have done in the past is file in the trial court a motion to determine competency to be executed as a way get that particular issue resolved in time for execution. But this is only useful if you can correctly anticipate the issue that's going to be raised. Right now, I think it would be a good tactic for MR claims.