Petition for Writ of Certiorari — Randall Wayne Mays, Petitioner v. Texas
Supreme Court briefSep 3, 2019
Ask Donna
What actually matters in this document.
Text
APPENDIX A
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-77,055
RANDALL WAYNE MAYS, Appellant
v.
THE STATE OF TEXAS
ON REVIEW OF AN ARTICLE 46.05 COMPETENCY TO BE EXECUTED
HEARING FROM CAUSE NO. B-15,717
IN THE 392ND DISTRICT COURT
HENDERSON COUNTY
K EASLER, J., delivered the unanimous opinion of the Court.
OPINION
In 2008, Mays was convicted of capital murder and sentenced to death. His execution
was set for March 18, 2015. In February 2015, Mays filed a motion in the trial court
challenging his competency to be executed.1 The trial judge denied Mays’s motion, finding
1
See T EX. C ODE C RIM. P ROC. art. 46.05(a) (“A person who is incompetent to be
executed may not be executed.”). Unless otherwise indicated, all future references to
Articles refer to the Code of Criminal Procedure.
Appendix A
MAYS—2
that Mays had failed to make a threshold showing raising a substantial doubt of his
competency to be executed.2 Mays appealed the trial judge’s ruling to this Court. We
determined that further review was necessary, and we stayed Mays’s execution. In December
2015, we held that Mays “did make a substantial showing that he is incompetent to be
executed.”3 We set aside the trial judge’s order denying relief, and we remanded this cause
to the trial court for further competency proceedings, including the appointment of mental
health experts.4
After an evidentiary hearing was held in August 2017, the trial judge found that Mays
is competent to be executed. Again, Mays has appealed the trial judge’s decision to this
Court. We affirm the trial judge’s decision finding Mays competent to be executed, and
therefore lift the stay of execution.
I. BACKGROUND
Mays committed the capital murder of Henderson County Deputy Sheriff Tony
Ogburn during a stand-off with police at Mays’s residence. On the afternoon of May 17,
2007, Mays’s neighbor called 911 to report that Mays was shooting a handgun at his wife.
When officers responded to the dispatch call, Mays initially displayed a calm demeanor. He
2
See Art. 46.05(d) (“On receipt of a motion filed under [Article 46.05], the trial court
shall determine whether the defendant has raised a substantial doubt of the defendant’s
competency to be executed[.]”).
3
Mays v. State, 476 S.W.3d 454, 456 (Tex. Crim. App. 2015).
4
Id. at 462.
Appendix A
MAYS—3
explained that he had been “target practicing” and that his gun was inside his house.
However, when Mays realized he was going to be arrested, he pulled out a knife and ran in
the front door of his house. He emerged with a rifle, warned the officers to “back off,” then
went back inside his house. Deputy Billy Jack Valentine tried to persuade Mays to put down
the rifle and come outside. Other officers, including Deputy Ogburn, took turns talking to
Mays. During the stand-off, Mays remarked that he feared the officers would kill him. He
expressed confusion about why he was “the bad guy.” And he commented that he was “sick”
and “about to die” because he “was poisoned.”
Mays eventually climbed out of a window without his rifle. As another deputy talked
to Mays in an effort to keep him calm, Valentine tried to position himself between Mays and
the window. When Mays saw what Valentine was doing, he re-entered his house by diving
head-first through the window. Mays then fired his rifle from inside his house, striking
Deputy Ogburn in the head and killing him. Mays yelled, “Where’s the other one? I’ll take
him out, where is he?” He then killed Inspector Paul Habelt by shooting him in the head.
The surviving officers returned gunfire, and Mays shot Deputy Kevin Harris in the leg. Mays
was eventually wounded, and he surrendered. He later told news reporters that he killed the
officers because he “felt [he] was being mistreated.”
Although Mays did not raise an insanity defense at trial, he presented evidence of his
mental condition. Dr. Theresa Vail, who was Mays’s treating psychiatrist at the Smith
County Jail, testified that Mays had depression and “a psychotic disorder not otherwise
Appendix A
MAYS—4
specified.” Psychologist Gilda Kessner and psychiatrist David Self did not examine Mays
but gave their opinions of his mental condition. Kessner opined that Mays suffered from a
“thought disorder with paranoid ideation.” Self opined that Mays had a “chronic and severe
psychiatric illness” and agreed that his past methamphetamine use might have contributed
to his psychosis. Mays’s friends and family members acknowledged his prior drug use, but
generally described him as gentle and even-tempered. However, Mays’s sister testified that
he sometimes acted suspicious and distrustful, and his mother testified that she had
occasionally seen Mays with a “weird look” in his eyes.
On direct appeal to this Court, Mays raised a number of issues related to his mental
health. He asserted that it is unconstitutional to execute the mentally ill. He complained that
the trial judge erroneously instructed the jury that it could not consider mental-illness
evidence that he “lacked the capacity to act intentionally or knowingly” during the
commission of the offense. He also argued that, due to his psychotic paranoia at the time of
the crime, he was entitled to jury instructions on mistake of fact, justification defenses, and
the lesser-included offenses of manslaughter and criminally negligent homicide. This Court
rejected those claims and affirmed Mays’s capital murder conviction and death sentence on
direct appeal.5
Mays next filed an Article 11.071 application for a writ of habeas corpus in the trial
court. Mays asserted on habeas that it is unconstitutional to execute the mentally ill. He
5
Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010).
Appendix A
MAYS—5
argued that trial counsel were ineffective because they failed to pursue a neuropsychological
evaluation for organic brain damage. He further alleged that trial counsel were ineffective
because they failed to request a hearing on whether he was competent to stand trial and failed
to raise an insanity defense. Trial counsel testified at the habeas hearing that they did not
think that an insanity or incompetency argument would have been successful. Counsel
believed that Mays understood the proceedings against him. With regard to their preparation
of Mays’s case, counsel explained that Mays was helpful at times, but suspicious and
disagreeable at other times. Counsel did not pursue a competency evaluation because they
were concerned that the State would conduct their own evaluation and use the results to the
detriment of the defense. When trial counsel attempted to have a psychologist evaluate Mays
for organic brain damage, Mays refused to cooperate.
Mays, however, agreed to cooperate when state habeas counsel hired Dr. Joan
Mayfield to conduct a neuropsychological evaluation on October 9, 2009.
Although
Mayfield testified at the habeas hearing that Mays was “cooperative,” she added that his
attention was “variable” and he was “[p]retty withdrawn.” She reported that Mays was
“sometimes hesitant to talk about his history.” Mayfield gave Mays a battery of tests, which
indicated some deficits in his cognitive functioning. Mayfield diagnosed him with “dementia
not otherwise specified” caused by chronic drug abuse. Mayfield testified that it was not
“like an Alzheimer’s dementia.” She explained that, “[o]nce the drug is stopped, there is still
damage; but it would not be progressive.”
Appendix A
MAYS—6
Following the habeas hearing, the trial judge recommended that relief be denied. This
Court adopted the trial judge’s findings and conclusions and denied habeas relief.6
Mays again raised these claims when he filed a petition for a writ of habeas corpus in
federal court. The United States District Court for the Eastern District of Texas denied
relief.7 The Fifth Circuit denied Mays’s request for a certificate of appealability. 8 The
United States Supreme Court denied Mays’s petition for writ of certiorari.9
Mays’s execution was initially set for March 18, 2015. In February 2015, the Office
of Capital and Forensic Writs (OCFW) filed in the trial court an Article 46.05 motion
challenging Mays’s competency to be executed. On February 27, 2015, the trial judge issued
an order in which he found that Mays had failed to make a threshold showing raising a
substantial doubt of his competency to be executed, and he declined to appoint experts to
evaluate Mays. Mays then asked this Court to review the trial judge’s denial of his Article
46.05 motion. We first determined that further review was necessary and stayed Mays’s
execution. On December 16, 2015, we concluded that Mays had made a substantial showing
6
Ex parte Mays, No. WR-75,105-01, 2011 WL 1196799, at *1 (Tex. Crim. App. Mar.
16, 2011) (per curiam, not designated for publication).
7
Mays v. Director, TDCJ-CID, No. 6:11-CV-135, 2013 WL 6677373 (E.D. Tex. Dec.
18, 2013) (mem. op., not designated for publication).
8
Mays v. Stephens, 757 F.3d 211 (5th Cir. 2014).
9
Mays v. Stephens, 135 S. Ct. 951 (2015).
Appendix A
MAYS—7
that he is currently incompetent to be executed.10 We held that Mays was entitled to further
proceedings in accordance with Article 46.05, including the appointment of at least two
mental health experts and a determination on the merits of his claim of incompetency.11
The trial judge thereafter appointed three experts to evaluate Mays for execution
competency. An evidentiary hearing to determine execution competency was held in August
2017. On October 2, 2017, the trial judge issued an order concluding that Mays had failed
to prove by a preponderance of the evidence that he is incompetent to be executed. Mays
now appeals the trial judge’s decision to this Court.
II. ARTICLE 46.05 PROCEDURE
Article 46.05 prohibits the execution of a person who is incompetent.12 A prisoner is
incompetent to be executed if he does not understand: (1) that he is to be executed and that
the execution is imminent; and (2) the reason he is being executed.13
Article 46.05 provides a two-stage procedure by which a prisoner can prove that he
is incompetent to be executed. First, the prisoner has a threshold burden to make a
substantial showing of execution incompetency.14 Once this threshold burden has been
10
Mays, 476 S.W.3d at 462.
11
Id.
12
See Art. 46.05(a); see also Ford v. Wainwright, 477 U.S. 399, 409–10 (1986).
13
Art. 46.05(h).
14
Mays, 476 S.W.3d at 457; see also Art. 46.05(f).
Appendix A
MAYS—8
satisfied, the prisoner is entitled to further proceedings under Article 46.05.15 The second
stage is a final, adversarial hearing at which the prisoner has to prove by a preponderance of
the evidence that he is incompetent to be executed.16 At the hearing, the fact finder must
consider competing credible evidence of competency and resolve the ultimate issue of
whether or not the prisoner is competent to be executed.17
In order to meet his threshold burden in this case, Mays relied upon Mayfield’s 2009
evaluation and the trial testimony of Vail, Kessner, and Self. He also produced medical
records showing his past and present delusional and paranoid behavior. His evidence showed
that he had been placed in the Terrell State Hospital twice in the 1980s due to psychotic
behavior. His second stay at Terrell occurred after police officers found him “spaced out on
crystal [methamphetamine]” and experiencing auditory hallucinations.
When Mays was hospitalized in 2007 to receive treatment for the gunshot wound he
sustained in the instant offense, he again experienced paranoia and hallucinations. After he
was transported from the hospital to the Smith County Jail, he expressed paranoid thoughts
that: he was being poisoned; prisoners and guards were plotting to harm him; he was allergic
to ozone; and gases in the air were affecting his ability to breathe. His medical records from
the Smith County Jail in 2007 noted “organic brain syndrome” and prescriptions for Zoloft,
15
Mays, 476 S.W.3d at 457.
16
Id. at 458; see also Art. 46.05(k).
17
Mays, 476 S.W.3d at 458.
Appendix A
MAYS—9
an anti-depressant, and Risperdal, an anti-psychotic medication. While incarcerated, he
wrote letters to his sister about investing in a renewable energy program and building a
windmill tower.
When Mays met with attorney Katherine Black in February 2015, he told her that he
heard the voices of “evil spirits” and complained about ozone and carbon monoxide in his
cell. Psychologists James Underhill and Cecil Reynolds, who reviewed Mays’s records,
signed affidavits in which they expressed doubts about his competency to be executed.
We determined based on this evidence that Mays met his threshold burden to make
a substantial showing of execution incompetency.18 We therefore concluded that Mays was
entitled to further proceedings under Article 46.05, including the appointment of mental
health experts and a determination on the merits of his competency to be executed.19
III. THE EVIDENTIARY HEARING TO DETERMINE COMPETENCY
The trial judge held a four-day competency hearing in August 2017. Prior to the
hearing, the trial judge appointed three mental health experts to evaluate Mays for execution
competency: Bhushan S. Agharkar (who was selected from Mays’s list of proposed experts);
J. Randall Price (who was selected from the State’s list of proposed experts); and George
Woods (who was jointly proposed by Agharkar and Price). The trial judge also signed an
“Agreed Order on Preliminary Article 46.05 Proceedings” instructing the experts to answer
18
Mays, 476 S.W.3d at 462.
19
Id.; see also Art. 46.05(k).
Appendix A
MAYS—10
the following “Referral Questions”:
1.
Does Mr. Mays suffer from a mental illness or mental impairment?
2.
If so, does Mr. Mays’s mental illness or mental impairment deprive him
of a rational understanding of the connection between his crime and his
punishment, i.e., “if [Mr. Mays’s] mental state is so distorted by a
mental illness that his awareness of the crime and punishment has little
or no relation to the understanding of those concepts shared by the
community as a whole?” Panetti v. Quarterman, 551 U.S. 930, 958-59
(2007).
The order further instructed the experts to consider whether Mays’s mental illness or
impairment deprives him of: (1) a rational understanding that he is to be executed and that
the execution is imminent or (2) a rational understanding of the reason he is being executed.20
An exhibit was attached to the order which contained professional guidelines and an
evaluation checklist that were published in the Behavioral Sciences & the Law journal in
2003.21 Mays acknowledges in his brief that the guidelines and checklist were provided to
the experts “at the suggestion of Mays’s counsel.” The trial judge ordered the experts to use
Sections I, II, and III of the checklist “to assist [them] in conducting their evaluations and as
the basis for framing the conclusions that shall be set forth in their written reports.” Sections
I and II contained factors to consider when evaluating an inmate’s understanding of his
punishment and the reasons for it. Section III contained factors to consider when evaluating
20
See Art. 46.05(h).
21
Patricia A. Zapf, Ph.D., Marcus T. Boccaccini, M. A. & Stanley L. Brodsky, Ph.D.,
Assessment of Competency for Execution: Professional Guidelines and an Evaluation
Checklist, B EHAV. S CI. L AW 21:103–120 (2003).
Appendix A
MAYS—11
an inmate’s ability to “appreciate and reason in addition to simple factual understanding.”
All of the experts testified at the hearing and submitted reports that were admitted into
evidence.
A. Mental Health Experts
Agharkar, a psychiatrist in private practice, was the first of the three experts to
evaluate Mays. He reviewed Mays’s records and conducted a face-to-face clinical interview
with him at the Polunsky Unit. Agharkar testified that, although he utilized the checklist
provided by the trial judge, he did not ask Mays every question contained within it. He did
not think it was “a good idea clinically” or “useful forensically” to ask closed-ended
questions. He believed that it was “a more effective interviewing style and technique” for
the interviewer to ask “open-ended questions” and then follow up for clarification purposes.
Agharkar also expressed that it is difficult to build rapport when “you hit somebody with a
barrage of questions or you just go down a list.” He further noted that the “guidelines”
provided by the trial judge had been peer-reviewed but not validated.
Agharkar met with Mays for two hours on June 16, 2016, and again for one and a half
hours on August 18, 2016. Agharkar described Mays’s demeanor as guarded and paranoid.
Agharkar reported that Mays expressed “a great deal of fear regarding being poisoned both
by the environment but also by the guards.” Mays believed that his food was being poisoned,
that “pepper gas” was being pumped through the vents in his cell, and that “ozone in the
atmosphere” was making him tired and unable to think clearly. Mays complained of arm
Appendix A
MAYS—12
pain, headaches, and stomachaches. He reported that he had been hearing the voice of God
speaking directly to him since he was an infant. He said that he did not take medication
given to him in prison because it made him hallucinate. When Mays noticed during the
interview that some numbers were printed on Agharkar’s shirt, he thought they represented
“some hidden message or code that [Agharkar] was not sharing with him.”
Mays told Agharkar that he had been awarded a patent on his design for an invention,
which he described as a “renewable energy source” that would be delivered “directly to
consumers” and “would essentially put the big gas or electric companies out of business.”
Mays stated that the prison warden was being pressured by the power companies to execute
him because they would lose “billions of dollars” if his idea came to fruition. He also
believed that the State wanted to execute him to save money on his medical expenses.
Agharkar acknowledged that when Mays had been in Terrell State Hospital in the
1980s, the doctors thought that his hallucinations and paranoia were related to his
methamphetamine abuse. But he noted that Mays continued to have psychotic symptoms
years after he stopped taking drugs. He testified that methamphetamine abuse typically does
not cause “persisting” psychotic symptoms. He testified that the fact that Mays had
consistent delusions over time “without any substance being involved” indicated that Mays’s
condition was “not related to substance illness and it’s most likely to be a primary psychotic
condition like schizophrenia[.]”
Agharkar testified that he conducted “screenings” of Mays “to detect for the presence
Appendix A
MAYS—13
of brain damage.” He acknowledged that he did not perform a “neuropsychological battery”
and that he “would never diagnose someone based on [his] screenings.” However, Agharkar
noted that his basic screening results were consistent with Mayfield’s diagnosis of dementia
in Mays in 2009. Agharkar acknowledged that people with dementia eventually lose the
ability to do “activities of daily living,” also called “ADLs.” When asked if there was any
evidence of Mays “losing his ADLs,” Agharkar replied, “Not that I’m aware.” But Agharkar
explained that ADLs are “hard to assess” in a prison setting.
Agharkar explained that Mays’s thoughts were “tangential” and not linear or logical,
which is “a sign of brain damage and brain impairment.”
He described Mays as
“perseverative” because he repeated the same responses and could not easily move from one
topic to the next. Agharkar testified that this was indicative of both brain damage and mental
illness. Agharkar further noted that when he returned to Polunsky for their second meeting,
Mays remembered Agharkar’s name and occupation, but he could not remember why
Agharkar was there. Agharkar testified that this was consistent “with a memory impairment
such as dementia.”
Agharkar stated in his report that Mays evaded some questions about his symptoms
and legal circumstances because he wanted to avoid dwelling on “negative things.” When
Agharkar asked Mays directly about his psychotic symptoms, Mays minimized the symptoms
and tried to act as if “it wasn’t a big deal.” Mays became more agitated and paranoid during
their second meeting when Agharkar “challenged him on a number of things” and “really
Appendix A
MAYS—14
tried to explore his thinking.” Agharkar testified that their second meeting did not end well
because Mays became suspicious of Agharkar’s motives and accused him of trying to “put
words into his mouth” or “psych him out somehow.”
Agharkar opined that Mays has both schizophrenia and neurocognitive disorder (also
called dementia). Agharkar acknowledged that, at the time of his evaluation, Mays was not
being treated for either of these conditions. He further acknowledged that neither Vail nor
Mayfield found Mays to have schizophrenia. He stated in his report that “[t]he combination
of a psychotic condition in addition to a dementing cognitive process is worse than either
alone for Mr. Mays.” He did not think that Mays was malingering.
Agharkar concluded that Mays is not competent to be executed. Although Mays
understands that he is to be executed and that his execution is imminent, Agharkar concluded
that he does not have a rational understanding of the reason he is being executed. Agharkar
stated in his report that Mays’s “beliefs about why he is to be executed are rooted in
delusional thinking, the product of a severe psychotic mental illness and a damaged brain.”
He added that Mays’s significant brain damage “makes it extremely unlikely that [he] will
ever rationally understand why he is to be executed as this condition exacerbates his paranoia
and severely hampers his ability to rationally consider his present situation.”
The next expert to evaluate Mays was Price, a forensic psychologist and
neuropsychologist. In addition to reviewing his legal and medical records, Price conducted
a two-hour face-to-face clinical interview with Mays at the Polunsky Unit on September 13,
Appendix A
MAYS—15
2016. Unlike Agharkar, Price believed that it was the “best practice” to use checklists in
evaluations.
Price utilized the checklist provided by the trial judge, but he did not
mechanically follow it, and he felt he had discretion to skip some of the questions. Although
not mandated by the trial judge, he also utilized Section IV of the trial judge’s checklist,
which pertained to Mays’s “ability to assist [his] attorney,” because he thought it might be
important. In addition, Price used his own checklist of 104 questions, which he called “The
Structured Competency for Execution Interview.” He described this in his report as “a
focused inquiry consist[ing] of a series of questions to guide the evaluator in the evaluation
of his competency for execution as set forth in Panetti . . . and in Article 46.05 of the Texas
Code of Criminal Procedure.”
Prior to interviewing Mays, Price explained the purpose of the evaluation and the
procedures involved. Mays said he understood the information and agreed to the evaluation.
However, Mays refused to sign an informed consent form, reportedly on the advice of his
attorney.
Price described Mays as “very friendly and polite,” but noted that “his
cooperativeness deteriorated over the evaluation especially when testing was attempted.”
Mays told Price that he had completed ninth grade and his work history included work
as a “roughneck and mechanic in . . . oil fields” and a “handyman.” He acknowledged that
he had been sent to Terrell in the 1980s due to methamphetamine use. He described that time
period as a “crazy part of [his] life.” He also stated that he had been dishonorably discharged
from the Army when he “[w]ent AWOL after a Sergeant hit him with a stick because he did
Appendix A
MAYS—16
not keep his head down on the firing line.”
Price stated in his report that “[n]o psychotic thinking was evident” during his
evaluation of Mays. However, “[d]elusions were evident, including paranoid ideation
concerning air quality, food contaminants, somatic processes, and the legal system.” Mays
complained of elbow, shoulder, and back pain. He stated that his liver hurt when he ate
sugar, salt, and vanilla. He also reported difficulty breathing in a confined area “due to
ozone coming in through the ventilation” in the prison. With regard to his mental state, Mays
said, “I’m pretty messed up at times.”
According to Price, Mays enjoyed talking about “the environment and energy
alternatives.” He told Price that he studied ecology and fossil fuels because he “was
interested in it” and he “thought everybody should be interested in it.” However, he did not
tell Price that he had a patent or an invention or that he wanted to run a business from death
row. Nor did he tell Price that he was going to be executed for such reasons. Price testified:
“[Mays] said that he wanted to help people, his friends and family, to build things that were
environmentally friendly, and he thought he could help them from prison by
correspondence[.]” Price thought that Mays “sounded rational about these issues during this
evaluation.”
Price stated in his report that Mays was extremely reluctant to give detailed answers
to questions about his offense or legal situation. He told Price that his attorney told him not
to answer any questions about the offense. Mays said he was in prison because “[t]hey say
Appendix A
MAYS—17
I murdered two police officers.” He knew he had been convicted of capital murder, which
he defined as “similar to murder but like when more than one person’s life is taken.” He said
that one victim’s name was “Harris,” but he “would rather not” name the other victims.
Mays “readily expressed his anger and frustration over his offense and conviction.” He said
that his conviction was “totally unfair,” and the offense would not have happened if the
police had “not come on [his] property and point[ed] their guns at [him].” He expressed a
belief that he could get out of prison someday because “the Lord works miracles.” He also
thought that he could get out of prison based on “appeals and getting his case overturned.”
Price testified that it was reasonable and rational for an inmate in Mays’s circumstances to
have such beliefs.
Price observed that Mays “seemed extremely anxious about his current legal situation
and the possibility that he will be executed.” Mays “appeared worried and distressed when
asked to discuss his punishment,” and he “evidenced somatic symptoms including shaking,
difficulty breathing, and dryness of mouth.” He “refused to answer any questions about the
death penalty because it was unpleasant for him,” and he avoided saying the words “death,”
“death penalty,” and “death sentence.” When Price asked Mays if his sentence was death or
life without parole, he responded that “the Bible says the devil is trying to kill me.” When
Price asked Mays to clarify that answer, he said, “It’s the word of God.” When Price asked
him what it meant to receive a death sentence, he responded “only the Lord knows.” Mays
avoided or resisted answering more questions about his death sentence and execution,
Appendix A
MAYS—18
repeatedly stating that he did not want to “dwell on the past” or “dwell on negative things.”
Price administered the Montreal Cognitive Assessment (MoCA) to Mays, which he
described as a standardized mental status examination of cognitive functioning. Price
reported that Mays’s score on the MoCA placed him in the “mild cognitive impairment
range.” Mays’s results “did not reveal deficits in visuospatial, executive, language, attention,
abstraction, or orientation.” Price stated that “[t]he only deficit revealed was in memory,
specifically in delayed recall for unrelated words.” Price also administered the Rey Fifteen
Item Test (RFIT) to Mays, which he described as a screening test for malingering of impaired
cognitive abilities. Mays’s performance on this test was not indicative of malingering.
Price testified that he wanted to administer additional tests to Mays during the
evaluation, but Mays refused to participate. Although Mays “reluctantly completed” the
MoCA and RFIT, he refused to take other cognitive tests because “he did not see the point.”
Mays told Price that he could “see nothing good coming out of this evaluation” and he did
“not want to dwell on the past.” Eventually, Mays “politely said he was terminating the
evaluation.”
Price acknowledged that Mays has “cognitive impairment,” but he did not diagnose
Mays with dementia. He testified that he saw “no evidence of a decline” from 2009 to 2016.
He also saw no evidence of impairment in Mays’s “activities of daily living.” And he further
testified that Mays’s mild level of cognitive impairment did not make him incompetent to be
executed.
Appendix A
MAYS—19
Price diagnosed Mays with the following mental disorders: (1) “Stimulant Use
Disorder, Amphetamines, In Remission Secondary to Controlled Environment”; (2)
“Paranoid Personality Disorder”; (3) “Substance-Induced Mild Neurocognitive Disorder,
Secondary to Stimulant Use Disorder”; (4) “Major Depressive Disorder, Mild”; and (5)
“Generalized Anxiety Disorder, Mild.” However, Price testified that these disorders did not
deprive Mays “of a rational understanding of the connection between his crime and his
punishment.” Price stated in his report that Mays “has a rational understanding that he is to
be executed and that it is imminent even though he is holding on to the idea that a miracle
might happened [sic] which would result in his release from prison.” Price further opined
that Mays “understands that he will be executed because he was convicted of capital murder
even though he believes his conviction was totally unfair.” Therefore, Price concluded that
Mays “is competent for execution.”
The final evaluation of Mays was conducted on April 27, 2017, by Woods, a
neuropsychiatrist. Woods also reviewed Mays’s records and interviewed him in person.
Woods testified that he utilized the trial judge’s checklist “to the degree that [he] could,” but
he noted that “anything that derives from that checklist may be problematic” because it had
been peer-reviewed but not researched or validated.
In his report, Woods described Mays as “easily distractible despite attempts to focus.”
He noted that Mays “often had his left eye closed and would tilt his head in a quizzical look.”
Woods gave Mays a variety of screening tests which indicated that Mays had mixed
Appendix A
MAYS—20
visuospatial skills, limited “constructional ability,” significantly impaired executive
functioning, and severely impaired abstraction ability.
Mays also exhibited impaired
memory. Mays was “generally cooperative,” but he declined to answer many questions due
to his “paranoid ideation,” particularly questions “about his personal life and the instant
offense.” Woods further reported that Mays “had difficulty with test instructions” and
expressed “repetition of theme” that was consistent with “perseveration.”
Woods reported that Mays’s thought processes were “connected, but delusional.” His
thought content was “paranoid, delusional, suspicious, [and] grandiose.” He “denie[d]
hallucinations on a consistent basis,” but he described “a period of time . . . when he believed
a small man sat on his shoulder, waving a knife at him.” Mays believed that particular
hallucination was caused by taking medication. Mays also complained of severe breathing
problems due to “different air in the cells.”
Mays told Woods that he was “developing a sustainable product to be used in the
energy sector.” Mays believed that he was “being conspired against” because “this device
would hurt the oil industry tremendously.” When Woods asked Mays “if he would trade the
secrets of his device in return for his life,” Mays replied that he would not do so. When
Woods asked him “what the chances were of him being able to leave prison to complete and
sell his sustainable device,” he said, “50-50.” Woods reported that Mays believes the State
of Texas is “trying to kill him to prevent him from developing and selling his wind device
and technology, which he believes is worth ‘billions of dollars.’” When Woods asked Mays
Appendix A
MAYS—21
how the State found out about his device, he said “they scanned his mail to his sister.” Mays
explained that he had unsuccessfully attempted to interest his sister in his business idea, but
he hoped to enlist her when he was released. Woods reported that when Mays’s delusions
were questioned, “he would retreat by saying, ‘I would rather not talk about that, Mr.
Woods.’”
Woods reviewed the letters Mays wrote in prison, in which he expressed a delusional
belief that he was being poisoned by the air, the ozone, and his food. Woods testified that
Mays’s letters also showed his “preoccupation and pervasiveness” in thinking about
renewable energy and building an electric wind generator. Woods testified that Mays’s
delusion “is not the green energy [idea],” but instead is his belief that the State “is trying to
kill him and keep him from marketing and developing [it].”
Woods concluded that Mays suffers from a Major Neurocognitive Disorder, which
he testified is “dementia-form in nature.” He testified that methamphetamine use typically
does not cause “the types of ongoing cognitive impairments that [Mays] has.” Woods also
opined that Mays has “a psychotic disorder,” but he was “on the fence about whether it’s
schizophrenia or not.” Woods disagreed with Price’s diagnosis of Paranoid Personality
Disorder.
Woods testified that Mays “falls much closer on the spectrum towards
schizophrenia than he does on paranoid personality.” Woods explained in his report that
Mays “manifests symptoms that are consistent with the diagnostic criteria for schizophrenia;
therefore, a diagnosis of schizophrenia must also be ruled out.” However, he noted that there
Appendix A
MAYS—22
was “no evidence of delirium,” and there was a lack of evidence to indicate the “social
deterioration [that] occurs in Schizophrenia[.]” Because Mays stopped using drugs decades
ago, Woods opined that “drug induced psychosis has been effectively ruled out.”
Woods did not believe that Mays was malingering. When asked if Mays had
experienced a decline since Mayfield evaluated him in 2009, Woods responded: “He’s
gotten worse in terms of his delusions and his paranoia and psychosis. It’s not clear that he’s
gotten worse in terms of his cognition.”
Woods concluded that Mays is incompetent to be executed because “[h]e does not
have a rational understanding of the connection between his crime and punishment.” Woods
testified that, although Mays has a factual understanding that the State is attempting to
execute him, he does not have a rational understanding of the reason why he is to be
executed. Instead, Mays’s “overwhelming belief is that the Texas state government is trying
to kill him to keep him from promoting this wind machine that he believes he has
developed.” Woods explained in his report that Mays has “awareness without insight,” in
that “[h]e is aware of a proceeding occurring,” but “[h]is understanding of the basis for the
motivation of the current proceeding is delusional[.]”
After the parties questioned Woods, the trial judge expressed that he had read the
numerous letters that Mays wrote in prison and found only “eight that mention wind power.”
The trial judge added, “And in all of these, he’s attempting to get a family member or friend
to do it so they can save themselves money.” The trial judge said that he did not see anything
Appendix A
MAYS—23
in the letters that indicated “an obsession with the government being interested in [Mays’s]
wind farm ideas.” The trial judge explained: “So I’m having a hard time connecting this,
which is his everyday life for the last few years, with an obsession that the government is
after him, because there’s nothing in here that would indicate that.” Woods responded:
“Nobody in his family asked him why did he get these ideas. Nobody - - I mean, this did not
come up until this particular situation came up.” The trial judge continued:
THE COURT: I would think if he was obsessed with it, he would have
said something to somebody in some of these letters he was writing and say,
the government is trying to kill me to get this wind farm information. I would
think that would come from him, not from somebody’s family member asking
him. You know, they wouldn’t know to ask a question like that.
[WOODS]: But that is exactly what you see in paranoid persons and
people that are paranoid. They don’t provide that information. These
conversations were enlightening, but they were basically pretty light. It wasn’t
until this legal issue came up that, in my opinion, this occurred.
THE COURT: So it’s your opinion, as you sit here today, that the
gentleman sitting here, Mr. Mays, doesn’t know why the State is trying to
execute him?
[WOODS]: No. It’s my opinion his greatest belief is that the State is
trying to execute him in order to keep this green [energy] thing and to keep
him away. That’s his greatest belief.
*
*
*
THE COURT: All right. Are you telling me that, as he sits here today,
he doesn’t have a rational understanding why the State is attempting to execute
him for killing two people?
[WOODS]: That’s correct. I am saying that he knows that he’s been
convicted and he knows that ostensibly the reason is because of his conviction.
But his real - - his real belief is what I’ve described.
Appendix A
MAYS—24
B. Other Evidence
In addition to the testimony and reports of the appointed mental health experts, the
parties presented additional evidence described below.
Mays’s trial counsel, Bobby Mims, testified that he thought Mays was mentally ill
during his trial. Prior to trial, the defense’s mitigation specialist noticed in Mays’s medical
records that a jail physician had opined that Mays had organic brain injury. Mays refused to
cooperate when Mims scheduled testing to investigate this possibility. Mims acknowledged
that none of the defense trial experts said that competency might be an issue. He also
acknowledged that Mays cooperated enough with the defense experts that they could proceed
to trial.
Mims further testified about other instances in which Mays was uncooperative and
paranoid before and during his trial. Despite the fact that Mims advised him not to talk about
his case, Mays made incriminating statements to the press when he was moved from the
hospital to the county jail. Mays also resisted releasing his medical records to trial counsel
because “he felt like we were trying to get his Social Security.” At one point during the trial,
Mays wept and collapsed on the floor “like a rag,” and Mims “couldn’t get him up.” Mays
also had what Mims described as a disturbing “psychotic episode” in a holding cell when
counsel discussed calling Mays’s wife to testify. Mays stood up, and “his eyes went from
being normal to little beady eyes, little pupils.” Mays said, “Okay. I know what you guys
are. I know this game.” He went from being meek and courteous towards counsel to acting
Appendix A
MAYS—25
“like somebody else.” And he behaved in a similar way when he got into a confrontation
with a deputy who transported him to and from the jail and the courtroom.
Mims testified that when he briefly spoke to Mays at the time of his writ hearing,
Mays “seemed to be even more delusional” than he was at trial. Mays talked to Mims about
ozone, bitcoins, and his belief that he was being poisoned in prison. Mays also wrote letters
to Mims in 2017, which were admitted as exhibits in the competency hearing. Mims testified
that Mays complained in these letters that prison guards were threatening him, and he offered
to pay Mims ten thousand dollars to get him “out of Polunsky and back to work in Hopkins
County.” It appeared to Mims that Mays was “out of touch with reality” and “doesn’t
understand what [he is] facing” with regard to his pending execution.
Baldemar Quintanilla, an investigator from the District Attorney’s Office, testified
that he visited and photographed Mays’s prison cell in 2015. The photographs were admitted
as exhibits in the competency hearing. Quintanilla testified that Mays had a calendar in his
cell on which he was counting the days until his scheduled execution. Mays also had a list
of other death row inmates who had been executed or had received a stay of execution.
Nina Foster, a mental health manager at the Polunsky Unit, testified that her
supervisor, Dr. Joseph Penn, referred Mays to her approximately two and a half weeks prior
to the instant competency hearing. When asked if Mays had “been on anybody’s radar” prior
to that time, Foster replied: “No.” Foster testified that, at the time she received the referral,
Penn “was involved in a deposition” regarding Mays. Foster explained that Penn “[j]ust
Appendix A
MAYS—26
wanted to make sure if [Mays] needed mental health treatment that he was receiving it.”
Foster testified that she thereafter “did a mental health evaluation on [Mays].” Foster
testified that she had good rapport with Mays, who appeared to be open and honest during
the evaluation. Mays told Foster that he was “[h]aving some problems with depression.” He
said he had hallucinations in the past when he was “on drugs” in his twenties, “right before
he went to the state hospital.” With regard to whether Mays was presently experiencing
hallucinations, Foster testified that Mays “briefly mentioned that he thought he had heard
things, but he didn’t want to talk about it.” Foster added that Mays did not show signs of
paranoia or psychotic symptoms.
Foster acknowledged that Mays mentioned “renewable energy sources” towards the
end of their conversation. Mays asked, “Did I tell you about my idea?” Foster replied, “No.
What do you mean?” Mays then responded that “he had an idea for renewable energy that
could keep power for . . . 24 hours or so.” Mays did not provide much detail on this topic.
He did not say that anyone was trying to steal his idea. Foster did not think that Mays’s
comment was irrational, and it did not alarm her with regard to his mental health.
Following her evaluation of Mays, Foster “sent a referral to the psychiatrist to see
him” about his reported depression. Foster testified that Mays thereafter had a teleconference
session with a jail psychiatrist, and she believed that Mays “was started on medication”
afterwards. Foster replied in the affirmative when she was asked if Mays was “on the mental
health caseload now.”
Appendix A
MAYS—27
Dr. Joseph Penn, the director of mental health services and Foster’s supervisor, gave
a deposition on July 28, 2017, which was introduced into evidence at the competency
hearing. Penn testified in the deposition about the psychiatric and mental health care services
that are provided to death row inmates. He explained that every inmate is screened for
mental health issues as part of the intake process when they enter prison. Inmates may also
access mental health care by asking for it themselves or being referred by someone else. The
correctional staff members are instructed to inform the mental health staff members if they
notice bizarre behavior in inmates. An inmate “with any identified or diagnosable mental
health disorder” can be placed on the mental health caseload. If an inmate is on the mental
health caseload, the mental health staff checks on him weekly. Even if an inmate is not on
the mental health caseload, he is seen by the mental health staff “every 90 days.” In addition,
members of the nursing staff make daily rounds to check on every death row inmate. If a
death row inmate needs inpatient psychiatric treatment and his clinical needs cannot be met
at the Polunsky Unit, he may be transferred to the Jester IV Unit. Penn acknowledged that
“telepsychiatry,” similar to video conferencing, is sometimes used to provide mental health
care in prison. He opined that because Polunsky is a “high profile unit,” the death row
inmates are “probably getting more services and in a more timely manner” than other
inmates.
Cathleen Cooper, a correctional officer, testified about her regular interactions with
Mays on death row. Cooper described Mays as “very polite except when I’ve made him
Appendix A
MAYS—28
angry.” For example, Mays told Cooper she was “hateful” when she denied his request for
a “front handcuff pass.” Cooper acknowledged that she was included on a list Mays
compiled which contained names of people he described as “hateful.”
Cooper testified that she delivered encyclopedias to Mays’s cell, and Mays liked to
tell her “fun facts that he learned from the books that he’s read.” However, Mays never
mentioned to Cooper that he thought the air was bad or that he was being poisoned. And he
never said anything to her about a green energy invention or a State conspiracy against him.
Cooper acknowledged that Mays never did anything that would cause her to refer him to
mental health services. She further acknowledged that she never saw anything “out of the
norm” regarding Mays.
In addition to the witness testimony and exhibits described above, other evidence
admitted at the competency hearing included: Mays’s legal, medical, jail, prison, and
educational records; transcripts of witness testimony from his trial and writ hearing; a
summary of prison phone calls between him and his wife; police reports, interviews, and
evidence pertaining to the instant offense; footage of his media interview following his
arrest; letters that he wrote in prison; and grievances and sick call requests that he made in
prison.
In the majority of his sick call requests, Mays complained about dental problems and
requested a “front cuff pass” due to arm and shoulder pain. He mentioned a few times in his
prison grievances and sick call requests that he got sick from eating tainted food and had
Appendix A
MAYS—29
breathing problems due to bad ventilation in his cell. He also complained in some of his sick
call requests in 2014 that his “Teva” medication was causing him to hallucinate.
In the numerous letters that Mays wrote to friends and family members while he
was in prison, he often mentioned tainted food making him feel sick and the ozone affecting
his breathing. He also consistently talked about his ideas for a “renewable energy design”
while trying to convince them it would be good for the environment and enable them to save
or earn money. However, Mays did not say in the letters that the State was trying to execute
him because of his renewable energy design.
IV. THE TRIAL JUDGE’S FINDINGS AND CONCLUSIONS REGARDING
COMPETENCY TO BE EXECUTED
A. The Trial Judge’s Order
The trial judge signed an “Order on TCCP Article 46.05 Hearing,” which contained
his findings and conclusions regarding Mays’s competency to be executed. The trial judge
determined that Mays had failed to prove by a preponderance of the evidence that he is
incompetent to be executed. In making this determination, the trial judge “considered all of
the sworn testimony of witnesses, exhibits, depositions, expert reports, briefs from both
parties, and oral arguments of counsel.” With regard to the credibility of the witnesses, the
trial judge “considered their observed attitudes, their interest in the outcome, their
relationships with the parties, if any, and the probability or improbability of their testimony.”
The trial judge stated that he “read and considered over 130 pages of writings by
[Mays] while on death row,” most of which were letters “to his mother and other family
Appendix A
MAYS—30
members and friends.” The trial judge explained: “Nowhere in the correspondence did I see
any sign of [Mays’s] obsession with wind energy that Dr. Woods and Dr. Agharkar referred
to.” He added: “The few times this subject was ever mentioned was as a suggestion for
ways to save on household electric bills.”
The trial judge pointed out that Mays wrote a letter to his wife in which he
“describe[d] the crime scene and provide[d] specific details of officers’ actions.” The trial
judge also noted that Mays wrote a letter to his sister one month prior to his original March
2015 execution date in which he discussed “the cost of necessary materials needed to build
‘the wood box,’ and gave information on where to obtain the supplies.” In that same letter,
Mays informed his sister of “burial plots” that had been purchased for the Mays family in
“Dunbar cemetary.”
The trial judge expressed concern about the “objectivity” of expert witness Woods
because “[Woods] was observed passing written notes to counsel for the Defendant during
her examination of Dr. Randall Price.” The trial judge explained: “It appeared to the Court
that Dr. Woods had become an advocate by such action rather than fulfilling his charge by
the Court to provide the Court the benefit of an objective assessment.”
The trial judge noted that expert witness Price “was the only expert who included the
guidelines specified by the Court in the Order of Appointment.” The trial judge also found
that when Mays was examined by Price, Mays “did not even mention his so-called
‘obsession’ over his clean energy design, much less indicate [that] it was the reason he was
Appendix A
MAYS—31
to be executed.”
The trial judge pointed out that Mays did not “mention anything about green energy
theories, poison in food, or air pollution” to correctional officer Cooper in the sixteen months
in which Cooper had “significant contact” with him on death row. Cooper “never observed
any conduct necessitating referral to a mental health professional.” Cooper testified that
Mays read numerous books and periodicals in prison. Based on Cooper’s testimony and
Mays’s written correspondence, the trial judge found that Mays gained knowledge about
“tree farms, tax advantages, low-interest loans for wind-generated electricity, and various
medications” from his “prolific reading and research” on these subjects.
The trial judge further found that “[s]ince Mr. Mays has been sitting on death row, he
has not been diagnosed, treated, or received prescribed medications for any mental illness or
obsession that has any bearing on this inquiry.” The trial judge also observed during the
competency hearing that Mays and his counsel “had a steady stream of written notes passed
between them,” and Mays “appeared to be fully participating in the hearing as much as he
physically could.”
The trial judge ultimately concluded that Mays: (1) is competent to be executed
pursuant to Article 46.05 and the guidelines set forth in Panetti22 and Battaglia;23 (2) has a
rational understanding that he is to be executed and that his execution is imminent; (3) has
22
See Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842 (2007).
23
See Battaglia v. State, 537 S.W.3d 57 (Tex. Crim. App. 2017), cert. denied, 138
S. Ct. 943 (2018).
Appendix A
MAYS—32
a rational understanding of the reason for which he will be executed; and, (4) has “some form
of mental illness” which “does not deprive him of the rational understanding of the
connection between his crime and the punishment received.”
B. The Standard of Review
Under Article 46.05(k), Mays has the burden to establish by a preponderance of the
evidence that he is incompetent to be executed.24 Preponderance of the evidence is defined
as “the greater weight of credible evidence that would create a reasonable belief in the truth
of the claim.” 25
In Battaglia, we recognized that “[a] prisoner’s awareness of the State’s rationale for
an execution is not the same as a rational understanding of it.” 26 We held:
[A] prisoner is competent to be executed under Article 46.05 if he knows he
is to be executed by the State, he knows the reason he is to be executed, he
knows that the execution is imminent, and, despite any delusional beliefs or
other mental illness he may have, and despite the fact that he may deny having
committed the capital offense, he comprehends that there is a “causal link”
between his capital offense and his imminent execution, beyond merely
identifying the State’s articulated rationale for the execution.27
The trial judge determined that Mays failed to meet his burden to establish by a
preponderance of the evidence that he is incompetent to be executed. Citing Article 46.05,
24
Id. at 90; see also Art. 46.05(k).
25
Id. (citing Druery v. State, 412 S.W.3d 523, 540 (Tex. Crim. App. 2013)).
26
Id. at 81 (citing Panetti, 127 S. Ct. at 2862).
27
Id.
Appendix A
MAYS—33
Panetti, and Battaglia, the trial judge concluded that Mays knows he is going to be executed
and his execution is imminent, and he has a rational understanding of the reason he is going
to be executed. The trial judge further concluded that Mays (despite having “some form of
mental illness”) understands there is a connection between his crime and his imminent
execution. Our task is to determine whether the trial judge abused his discretion in the way
he applied Article 46.05 to the facts presented in this case.28
When reviewing a trial judge’s determination of execution competency, we apply a
“highly deferential” standard of review.29 We will reverse the trial judge’s determination
only if it is outside the zone of reasonable disagreement.30 We will sustain the trial judge’s
ruling if it is supported by the record and is correct on any theory of the law applicable to the
case.31
C. Analysis of the Trial Judge’s Competency Determination
The experts agreed that Mays understands he is to be executed and his execution is
imminent. However, they disagreed about whether Mays has a rational understanding of the
reason he is to be executed. Two of the experts, Agharkar and Woods, concluded that Mays
is incompetent to be executed because he does not have a rational understanding of the
28
See id. at 89.
29
Id. at 90 (citations omitted).
30
Green v. State, 374 S.W.3d 434, 441 (Tex. Crim. App. 2012) (citations omitted).
31
Id. at 441–42 (citations omitted).
Appendix A
MAYS—34
reason he is to be executed. Price, however, arrived at the opposite conclusion. The trial
judge agreed with Price.
Mays argues on appeal that the trial judge abused his discretion by crediting the
opinion of Price over Agharkar and Woods. He complains that the trial judge ignored
Agharkar’s opinion in making the competency determination. However, the trial judge
expressly stated in his order that he considered all of the witness testimony and expert
reports. A trial judge is generally within his authority to accept the evidence that he believes
is most credible and convincing and reject that which he finds not credible.32
All three experts reviewed Mays’s records and conducted face-to-face interviews with
him. Agharkar met with Mays twice, while Price and Woods met with Mays only once
because at some point Mays refused to participate. Agharkar, who is a medical doctor,
acknowledged that “[m]edical doctors are not trained to give psychological tests.” Therefore,
Agharkar only “conducted screenings,” and he admitted that he “would never diagnose
someone based on [his] screenings.” Price and Woods, on the other hand, conducted more
comprehensive testing than Agharkar did.
The trial judge noted concerns about Woods’s “objectivity” because he observed
Woods passing notes to Mays’s counsel during the competency hearing. The trial judge had
the discretion to assess the credibility of the witnesses, and he explained that he did so based
upon a variety of factors, including “their observed attitudes, their interest in the outcome,
32
Battaglia, 537 S.W.3d at 91.
Appendix A
MAYS—35
their relationship with the parties, if any, and the probability or improbability of their
testimony.”
Mays attacks Price’s credibility because Price’s partner in his psychology practice, Dr.
Timothy Proctor, had been on the State’s list of potential witnesses at Mays’s 2008 capital
murder trial. Mays contends that “[t]his fact alone should have caused the court to discount
Dr. Price’s objectivity in this matter.” Price acknowledged at the hearing that he became
aware of this fact at some point, but he denied discussing Mays’s case with Proctor. And it
appears from Defense Exhibit 48, an excerpt from the transcript of Mays’s punishment trial,
that the State did not actually call Proctor to testify. In this excerpt, the trial prosecutor stated
that Proctor was one of “a number of experts that [he was] going to call in possible rebuttal”
if the defense called a mental health expert to testify. The trial prosecutor then explained that
he “declined to call any experts in rebuttal on that [issue].” Under these circumstances, we
fail to see how Price was laboring under a per se conflict of interest. Accordingly, it was
within the trial judge’s discretion to find Price’s opinion credible and persuasive.
Mays also asserts that Price “lacked the requisite clinical experience to conduct the
assessment” in this case. The evidence shows otherwise. Price testified that he had prior
experience in “competency-for-execution evaluations” at the request of both the State and
the defense. He estimated that “at least 80 percent” of his work involved evaluating inmates
in correctional facilities. Mays additionally complains that Price failed to build rapport and
made a hasty conclusion about his competence without conducting a follow-up interview.
Appendix A
MAYS—36
But the record establishes that all of the experts had some difficulty establishing rapport with
Mays, not just Price. Both Agharkar and Woods acknowledged that Mays avoided answering
some of their questions. In addition, Mays accused Agharkar of trying to “put words into his
mouth” and “psych him out.”
Mays further argues that Price made errors when calculating his score on the MoCA
test. Price reported that Mays scored 26 points out of 30, which placed him in the “mild
cognitive impairment range but only one point short of the normal range.” Mays contends
that Price’s calculation errors artificially inflated his score. Price admitted at the competency
hearing that he had made calculation errors when scoring the MoCA test. However, it
appears from his testimony that it would have only made a one or two point difference in
Mays’s score. Price testified that MoCA scores ranging “[f]rom 18 to 26” indicate “mild
cognitive impairment.” If that is the case, then Mays would still fall within the “mild
cognitive impairment” range even if his score was one or two points lower.
Mays also takes issue with the trial judge’s finding that Price “was the only expert
who included the guidelines specified by the Court in the Order of Appointment.” Although
Agharkar and Woods testified that they used the guidelines and checklist to some extent, they
expressed criticism of these items. Price, on the other hand, believed that it was the “best
practice” to use checklists in evaluations. Although Mays acknowledges in his brief that the
guidelines and checklist were provided to the experts “at the suggestion of Mays’s counsel,”
he now argues that they “are ultimately ancillary to the trial court’s referral questions”
Appendix A
MAYS—37
because they pre-date Panetti. Price, however, utilized his own checklist in addition to the
one provided by the trial judge. And Price testified that his own checklist was developed in
accordance with Panetti and Article 46.05.
Further, Mays attacks the trial judge’s finding that, “[s]ince Mr. Mays has been sitting
on death row, he has not been diagnosed, treated, or received prescribed medications for any
mental illness or obsession.” That is how Mays quotes the trial judge’s finding in his
opening brief, but that is not what the trial judge’s finding actually says. The trial judge
actually found that, since he has been on death row, Mays has not been diagnosed, treated,
etc., for any mental illness or obsession “that has any bearing on this inquiry.” In light of this
qualification, this finding is better understood as a statement that, whatever mental
impairments Mays suffers from, they have not rendered him incapable of understanding (1)
that he is to be executed and (2) the reason he is to be executed. This finding is supported
by the record because it was Dr. Price’s stated opinion, as reflected both in his written report
and in his testimony. And, as we have already discussed, the trial judge was generally at
liberty to credit Price’s opinion over the other experts’ opinions.
But let us assume arguendo that what the trial judge really meant was that, while on
death row, Mays was never diagnosed, treated, or medicated for any mental illness or
obsession at all. Mays argues that such a finding would be incorrect because all three experts
agreed that Mays has a mental illness (although they disagreed about the precise diagnosis).
It is true that Agharkar, Price, and Woods all found Mays to have some form of mental
Appendix A
MAYS—38
illness when they examined him in 2016 and 2017, prior to the competency hearing. And
Mays’s records indicate that he was taking prescribed anti-depressant and anti-psychotic
medications when he was in Smith County Jail prior to his 2008 trial. However, Foster
testified that Mays had not been on the death row “mental health caseload” until 2017.
Foster acknowledged that, prior to 2017, Mays had not “been on anybody’s radar” regarding
potential mental health problems on death row. Thus, it appears from the record that Mays
was not being regularly medicated for a diagnosed mental illness while incarcerated on death
row between 2008 and 2017.
Mays argues that he was not being treated for mental illness because of the “poor
mental health treatment” provided to death row inmates. For example, he points out that no
one followed up on a 2014 prison “correctional managed care” report that stated: “Offender
kept talking about gases in the air. Please schedule to be evaluated by mental health.” Foster
and Penn, however, both testified that death row inmates who are not on the mental health
caseload are still seen by the mental health staff every 90 days. They also testified that nurses
with mental health training make daily rounds to check on death row inmates. Penn testified
that the “custody staff” are trained to alert the mental health staff when they notice bizarre
inmate behavior. Correctional officer Cooper, who had regular contact with Mays in the
sixteen months prior to the competency hearing, testified that she never observed Mays do
anything “out of the norm” that would cause her to refer him to mental health services. And
when Foster evaluated Mays a few weeks prior to the competency hearing, Mays said he had
Appendix A
MAYS—39
been experiencing depression but showed no signs of paranoia or psychotic symptoms.
Mays next complains about the trial judge’s finding that Mays did not mention to
Price “his so-called ‘obsession’ over his clean energy design, much less indicate [that] it was
the reason he was to be executed.” Mays argues that he did “bring up his plans for renewable
wind energy” with Price, but Price failed to “dig into [his] delusional thought processes,” and
instead changed the subject.
Price acknowledged that Mays talked to him about the topic of “the environment and
energy alternatives” during their evaluation. Mays told Price that he studied the topic
because he was interested in it, and he corresponded with friends and family about it because
“he wanted to help people . . . build things that were environmentally friendly[.]” Price
thought Mays sounded rational when discussing the topic. In his letters to friends and family
members, Mays consistently mentioned his idea for a “renewable energy design” while trying
to convince them it would be good for the environment and would enable them to save or
earn money. But Mays did not state in these letters or during his evaluation with Price that
the State was going to execute him because of his renewable energy design. Nor did he
mention anything in this regard to Cooper, the correctional officer who had regular contact
with him in prison for sixteen months prior to the instant competency hearing. Although
Mays liked to tell Cooper “fun facts that he learned from the books that he’s read,” he never
told her anything about bad air, poisoned food, his green energy invention, or a State
conspiracy against him.
Appendix A
MAYS—40
Furthermore, Price’s interview with Mays did not simply fail to uncover a delusional
understanding on Mays’s part of the reason for his execution; it actually produced some
affirmative evidence that Mays had an accurate and rational understanding of the reason for
his execution. Mays told Price that he understood he was on death row because he had been
convicted of capital murder for killing a police officer. While Mays also told Price that he
believed the conviction was unjust, Price testified that it is very common for inmates to deny
that they were at fault in committing an offense. And even Woods acknowledged that
whether a person believes they were justly convicted is “not really an issue for you when it
comes to competency.” Price also clarified that it is common, and certainly not irrational,
for an inmate to hold the belief that, against all odds, his conviction might one day be
overturned.
Mays also spoke of the capital murder in terms of “they say” (“they say I murdered
two police officers”), which might suggest that he was simply reciting or parroting back the
State’s proffered reason for seeking his execution.33 But Price explained that this phrasing
was consistent with Mays’s general pattern of not wanting to “give a statement of
guilt”—again, “not an uncommon thing” for an inmate in Mays’s position. Price further
noted that Mays generally avoided discussing the facts of the underlying offense on the
advice of his attorneys. Phrasing the capital-murder offense in terms of “they say” could also
be construed as an attempt to comply with this advice. It need not necessarily indicate a
33
See Battaglia, 537 S.W.3d at 65 (discussing Panetti, 551 U.S. at 959).
Appendix A
MAYS—41
delusion, and Price certainly did not take it as such. We cannot say that the trial judge abused
his discretion in crediting Price’s opinions in these regards.
Finally, Mays argues that Battaglia is distinguishable from his case because it
“hinges” on the fact that Battaglia was malingering. He argues that if this case is affirmed,
then the standard articulated in Battaglia means that “trial courts are free to decide that an
offender’s delusions are largely irrelevant so long as there is evidence that he knows the State
plans to execute him and there is evidence that he can read and write at a sixth-grade level.”
The State responds that, when comparing Battaglia to the instant case, “[t]he
similarities are far more compelling than their differences.”
We note that there was
conflicting evidence regarding competence to be executed in both cases. Further, both
Battaglia and Mays expressed conspiracy-based delusions, lacked a record of mental health
referrals while on death row, and appeared to function adequately without anti-psychotic
medications in prison. Although the absence of malingering is a factor we may consider in
this case, it is not necessarily dispositive of the issue at hand.
The standard articulated in Battaglia takes an inmate’s delusions and mental state into
account. But even if an inmate has delusions, he may still be executed if he can rationally
understand the reason for his execution. Delusions “come in many shapes and sizes, and not
all will interfere with the understanding that the Eighth Amendment requires.” 34 The critical
question is whether a prisoner’s mental state or concept of reality is so impaired that he
34
Madison v. Alabama, 139 S. Ct. 718, 729 (2019) (citing Panetti, 551 U.S. at 962).
Appendix A
MAYS—42
cannot grasp the execution’s “meaning and purpose” or the “link between [his] crime and
punishment.”35 As shown in his letters, Mays told his friends and family members about his
renewable energy design over the years. He also expressed his interest in the topic of
renewable energy to Price and Foster. But there is no evidence that he told anyone besides
Agharkar and Woods that he believed that the State planned to execute him in order to stifle
his renewable energy invention. As Woods testified, the relevant delusion “is not the green
energy [idea],” but instead is Mays’s belief that the State “is trying to kill him and keep him
from marketing and developing [it].” And Woods acknowledged at the competency hearing
that Mays did not articulate that particular belief to anyone “until this legal issue came up.”
V. CONCLUSION
The record supports the trial judge’s determination that Mays is competent to be
executed. Mays knows he is to be executed by the State, he knows he was convicted and
sentenced for killing a police officer, and he knows his execution is imminent. The experts
gave conflicting opinions on whether Mays has a rational understanding of the reason he is
to be executed. It was within the trial judge’s discretion to evaluate the weight and
credibility of the conflicting evidence. There is evidence in the record supporting the
conclusion that Mays comprehends that there is a “causal link” between the capital offense
and his imminent execution beyond merely identifying the State’s articulated rationale for
the execution.
35
Id. at 723 (citing Panetti, 551 U.S. at 958, 960).
Appendix A
MAYS—43
Therefore, the trial judge’s decision that Mays failed to establish by a preponderance
of the evidence that he is incompetent to be executed is within the zone of reasonable
disagreement and not an abuse of the trial judge’s discretion. We affirm the trial judge’s
decision finding Mays competent to be executed and lift the stay of execution.
DELIVERED: June 5, 2019
DO NOT PUBLISH
Appendix A
APPENDIX B
FILED FOR RECOlU)
At ( '{)S O'clock�M.
Ut.: f O 2 2017
CAUSE NO. B-15,717
THE STATE OF TEXAS
vs.
RANDALL MAYS
§
§
§
§
§
IN THE DISTR.--......�
BY.
-
HENDERSON COUN
392ND JUDICIAL DISTRICT
SITTING FOR THE
173RD JUDICIAL DISTRICT
ORDER ON TCCP ARTICLE 46.05 HEARING
Randall Mays was convicted by a jury in Henderson County, Texas, in Cause No.
B-15,717 of the capital murder of two Henderson County Sheriff's Deputies and was sentenced
to death on May 13, 2008.
Prior to the imminent execution scheduled for March 18, 2015, Defendant filed a Motion
Regarding Competency to be Executed Pursuant to Texas Code of Criminal Procedure (TCCP)
Article 46.05.
Judge Tarrance appointed three experts to examine the Defendant and directed them to
provide the Court with an objective assessment of Mr. Mays' competency to be executed.
The Court heard the Defendant Randall Mays' TCCP 46.05 on September 9-12, 2017. At
the hearing and thereafter, the Court considered all of the sworn testimony of witnesses, exhibits,
depositions, expert reports, briefs from both parties, and oral arguments of counsel.
In determining the credibility of all witnesses, the Court considered their observed
attitudes, their interest in the outcome, their relationship with the parties, if any, and the
probability or improbability of their testimony.
The Court has read and considered over 130 pages of writings by the Defendant while on
death row. Most of the letters were to his mother and other family members and friends.
Nowhere in the correspondence did I see any sign of Defendant's obsession with wind energy
that Dr. Woods and Dr. Agharkar referred to. The few times this subject was ever mentioned was
as a suggestion for ways to save on household electric bills.
In Mays' letter dated January 6, 2013 to his wife, he describes the crime scene and
provides specific details of officers' actions.
Also, less than one month prior to the original execution date of March 18, 2015,
Defendant wrote a detailed letter to his sister regarding the cost of necessary materials needed to
build "the wood box," and gave information on where to obtain the supplies. In the same letter,
Defendant informed her of the burial plots purchased for the Mays Family in Dunbar cemetery.
Appendix B
Appendix B
Appendix B
APPENDIX C
FJLED FOR RFCORr
2016 FEB 18 AH 10: 20
No. B-15 1717
'
f) J ·;,
i
. , ~ ' (\ '•'"
; _'.,"~' : ~ L) I ; ·~ H.1 I
THE STATE OF TEXAS
§
§
§
VS,
§
§
RANDALL MAYS
§
§
.
'\ '
• .:... '. '"; ;,·
L. L. l: :~ ;,\
,it:/ DERSUN COUNTV T"
1
IN THE 392nd DISTRICT '\
'
COURT OF HENDERSON
COUNTY, TEXAS
AGREED ORDER ON PRELIMINARY ARTICLE 46.05 PROCEEDINGS
On January 22, 2016, the parties appeared before this Court for a status conference. At
that time, the Court granted Defendant Randall Mays's Motion to Compel Expedited Discovery
to Facilitate Article 46.05 Proceedings ("Discovery Motion") and signed an Order to that effect.
The Court also made additional rulings memorialized herein:
Court-Armointed Mental Health Experts
On or before February 15, 2016, the parties shall each submit to the Court, and serve on
each other, a list designating at least three mental health experts, qualified to conduct evaluations
of Randall Mays's competency to be e,cecuted, pursuant to Article 46.05 of the Texas Code of
Criminal Procedure. The list shall be accompanied by the curriculum vitae of each proffered
e,cpert. The designation of these e,cperts shall not preclude either party from seeking to obtain its
own consulting expert or preclude the parties from electing to present their own e,cpert(s) at the
evidentiary hearing as testifying experts.
The Court shall select one qualified expert from each of the two lists for court
appointment. These two appointed experts shall be instructed to confer and jointly designate a
third qualified expert for court appointment.
Appendix C
Each of the three court-appointed mental health experts, as well as any expert retained by
either party, shall be provided a copy of this Order as well as a copy of the Assessment of
Competency for Execution: Professional GuideHnes and an Evaluation Checklist, attached here
as Bxhiblt 1 (hereafter, "Guidelines"). The mental health experts shall use Sections one, two,
and three of the checklist found in the Guidelines to assist in conducting their evaluations and as
the basis for framing the conclusions that shall be set forth in their written reports.
Were the Court to select an expert from either list whom the other party believes is not
qualified under Dauber/ 1/Robinson, 2 that party shall file a motion to strike 1hat expert. Any such
motion to strike shall be filed, heard, and resolved before the competency evaluations
commerice.
After providing the Court with the names of possible experts, all communications with
those experts will be handled by this Court or its staff. The State and defense will be prohibited
from contacting those experts regarding Mr. Mays's case until their evaluation is complete.
Upon completion of the evaluations, the parties may seek an order from this Court allowing them
to contact the experts, after notifying the other party of its intent to do so and providing adequate
opportunity for a response.
Competency-Related D.iscover,y
Pursuant to this Court's January 22nd Order granting the Discovery Motion, the District
Attorney for Henderson County, on behalf of the State, shall produce all relevant materials
1 Dauben v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
2 E.1 DuPont de Nemours & Co. v. Robinson, 923 S. W.2d 549 (Tex. 1995)
2
Appendix C
described in the Discovery Motion to the Office of Capital and Forensic Writs, attorneys for
Randall Mays, on or before May 2, 2016.
Thereafter, counsel for the parties shalJ confer and prepare a joint submission of relevant
discovery materials to be provided to the Court and to all court-appointed and retained mental
health experts. As further discovery is produced, the parties will work together to supplement
these materials as necessary and to promptly provide any additional joint submissions to the
Court and to each of the mental health experts.
Referral Questions
Each mental health expert, using the Guidelines to assist in conducting his or her
evaluation, is directed to reach a conclusion regarding the following:
1. Does Mr. Mays suffer from a mental illness or mental impairment?
2. If so, does Mr. Mays's mental illness or mental impairment deprive him of a rational
understanding of the connection between his crime and his punishment, i.e., "if [Mr.
Mays's] mental state is so distorted by a mental illness that his awareness of the crime
and punishment has little or no relation to the understanding of those concepts shared by
the community as a whole'?n Pane/ti v. Quarterman, 55 l U.S. 930, 958-59 (2007).
In making the foregoing determination, the expert shall consider whelher Mr. May's mental
illness or mental impainnent deprive him of: ( l) a rational understanding that he is to be
executed and that the execution is imminent or (2) a rational understanding of the reason he is
being executed. TEX. CODE CRIM. PRO. art 46.0S(h).
These conclusions shall be contained in a written report. Each mental health expert who
examines Randall Mays pursuant to this Order shall provide, within a time to be ordered by the
3
Appendix C
"
Court, copies of his or her report to the attorney representing the State, the attorney representing
Randall Mays, and the Court.
Thereafter, the Court shall set a date for the final competency hearing where both parties
shall be permitted to present and cross-examine witnesses relevant to ascertaining whether
Randall Mays is, by a preponderance of the evidence, presently incompetent to be executed
under Article 46.0S(k) and Panelli l'. Quarterman.
SIONED on this
t"
K day of February 2016.
e C er Tarrance, presiding
392 Judicial District Court
4
Appendix C
•
EXHIBIT A
Appendix C
Behavioral Sciences and the Law
Behav. Sci. Law 21: 103-120 (2003)
Published online 2 July 2002 in Wiley InterScience (www .interscience.wiley.com). DOI: 10.1002/bsl.49 l
Assessment of Competency
for Execution: Professional
Guidelines and an Evaluation
Checklist
Patricia A. Zapf, Ph.D.*,
Marcus T. Boccaccini, M. A.t,
and Stanley L. Brodsky, Ph.D.+
The issue of whether mental health professionals should be
involved in conducting evaluations of competency for execution is a topic that has elicited controversy and heated
debate. This article picks up at a point beyond the controversy and addresses issues of professionalism and the
objective assessment of competency for execution. Specifically, this article identifies professional standards for
conducting competence for execution (CFE) evaluations,
describes current practices in this area, and provides an
interview checklist that can be used as an evaluation guide
by involved professionals. Copyright © 2002 John Wiley &
Sons, Ltd.
There has been much debate about whether mental health professionals should be
involved in the assessment (and treatment) of competency for execution (CFE) (see
Appelbaum, 1986; Bonnie, 1990; Brodsky, 1990 for early discussions of these
issues; see Brodsky, Zapf, & Boccaccini, 2001 for an overview of the legal, ethical,
and professional issues). Although some mental health practitioners refuse to
participate in CFE cases, other mental health professionals choose to become
involved. It is important, therefore, to look beyond the debate about whether mental
health professionals should be involved in CFE cases and to develop professional
guidelines for those who choose to become involved.
Brodsky (1990), in discussing ethical considerations in the evaluation of CFE,
noted that 'the vaguer the goals and criteria are for any given task, the more likely the
clinician is to utilize his or her own values: similarly, the more unstructured and
vague the assessment methods are, the more likely it is that values will impose'
(p. 92). An accepted protocol for performing CFE evaluations is needed to help
prevent evaluators' personal values from having an undue influence on the results of
their CFE assessments. As a first step toward meeting this need, we interviewed
seven mental health experts who had conducted at least one CFE evaluation and
*Correspondence to: Patricia A. Zapf, Assistant Professor, Department of Psychology, The University of
Alabama, Box 870348, Tuscaloosa, AL 35487-0348, U.S.A. E-mail: pzapf@bama.ua.edu
I Doctoral Candidate, Department of Psychology, The University of Alabama.
IProfessor, Department of Psychology, The University of Alabama.
Copyright© 2002 John Wiley & Sons, Ltd.
Appendix C
104
P. A. Zapf et a/.
used their reports and opinions about conducting CFE assessments as a foundation
for proposing a CFE evaluation checklist. This article outlines professional issues
relevant to CFE evaluations, describes current practices in this area via a summary
of our interviews, and provides a checklist of items that can be used by evaluators to
guide their CFE assessments.
DEFINITION AND CONCEPTUALIZATION
OF COMPETENCY FOR EXECUTION
In Ford v. Wainwright (1986), the United States Supreme Court ruled that the
Constitution's Eighth Amendment 'cruel and unusual punishment' clause prohibited the execution of an 'insane' person. Justice Marshall, delivering the opinion of
the Court, concluded that the Eight Amendment 'prohibits the State from inflicting
the death penalty upon a prisoner who is insane' (p. 419). The Court offered the
following rationales for their decision: (i) execution of the insane would offend
humanity, (ii) executing the insane would not set an example and would not reaffirm
the deterrence value believed to exist with capital punishment, (iii) any individual
who is believed to be insane is also believed unable to prepare 'spiritually' for death,
(iv) madness itself is punishment and, therefore, negates the punishment value of
execution, and (v) no retributive value is believed to be served by executing the
mentally incompetent.
The Court in Ford did not specify a proper legal test of incompetence in the
execution context. Melton, Petrila, Poythress, and Slobogin (1997) noted that the
Supreme Court failed to provide a single legal standard and specific guidelines for
evaluating this type of competency because the very issue was never raised. Only
Justice Powell, in his concurring opinion, addressed the issue of the legal test for
competency for execution. Justice Powell stated that the Eighth Amendment
'forbids the execution only of those who are unaware of the punishment they are
about to suffer and why they are to suffer it' (Ford v. Wainwright, 1986, p. 2608).
Further, he concluded that the proper test of competency should be whether the
individual can comprehend the nature, pendency, and purpose of his or her
execution. Justice Powell argued that only when defendants are aware of the
connection between their crime and the punishment is the retributive goal of
the criminal law satisfied, and that defendants can only prepare for death if they
are aware that it is pending shortly. Justice Powell also asserted that the states were
free to adopt 'a more expansive view of sanity' that included the 'requirement that
the defendant be able to assist in his own defense' (Ford v. Wainwri'ght, 1986, p.
2608). Subsequent federal decisions have kept the Ford criteria intact and have not
expanded upon the definition or criteria to be used in considering competency for
execution (Brodsky et al., 2001).
Every state prohibits the execution of 'insane' or 'incompetent' offenders since
Ford. The definition of insanity or incompetence for execution, however, varies
among jurisdictions. Acker and Lanier (1997) reviewed statutes and case law in
every state that allows capital punishment and concluded that legal tests in all US
jurisdictions incorporate the examination of two basic cognitive criteria (with the
essential precursor of these cognitive criteria being that the individual being
evaluated has a severe mental disease or defect): (i) the ability to understand the
Copyright ((;; 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
Assessing competence for execution
105
nature of the punishment being imposed and (ii) the ability to understand the
reasons why the punishment is being imposed (see also Harding, 1994). In addition,
these authors noted that a third criterion is included in some jurisdictions, either as
an alternative basis for a finding of incompetence or as an additional criterion to be
satisfied. This third criterion takes into consideration the offender's capacity to
comprehend the reasons that might make the capital sentence unjust and to
communicate these reasons effectively.
It is important to note that some authors have commented on the relatively low
standard of competence for execution as set out by the Ford decision and the
necessity for evaluators to perform comprehensive assessments of all relevant
aspects of competency-including those that go above and beyond the standard
set out in Ford (see e.g., Zapf, 2002). The argument is that competence-related
abilities such as rational understanding and appreciation (in addition to factual
understanding) need to be addressed in the evaluation and discussed in the report to
the court so as not to interpret the Ford criteria for the court, but rather to describe
all relevant aspects of competency so the court can make an informed decision in
each case.
ASSESSMENT OF COMPETENCY FOR EXECUTION
Although almost every state has a legal test for competency for execution, it is not
clear exactly how the Ford or other CFE criteria should be assessed. That is, because
CFE evaluations are such a low base rate phenomenon, there has been little case law
that elaborates on how the criteria are to be applied and assessed. In addition to the
lack oflegal guidelines and precedent, there are no assessment tools to aid evaluators
called upon to perform this type of evaluation. Therefore, professionals who
conduct these evaluations are left to their own devices in terms of how to perform
the evaluation and how to interpret the legal criteria.
Brodsky, Zapf, and Boccaccini (1999) proposed a series of steps for the development ofresponsible, professional, and objective evaluations of CFE. These steps
include (i) the development of minimum standards for adequate competence for
execution evaluations, (ii) the collection of baseline data on current practices (e.g.
interviewing a sample of psychologists and psychiatrists who conduct CFE assessments to identify the state of practice, problems, and concerns), (iii) the collection of
data on issues that are of importance to other professionals involved in CFE cases
(e.g. attorneys who represent death sentenced offenders and attorneys who represent the state in CFE hearings should be systematically sought out and interviewed),
(iv) an analysis of how CFE assessments relate to the emerging psychometric
understanding of competency assessments in general (e.g. areas of overlap and
non-overlap of scholarly and professional frames of reference need to be studied and
identified), and (v) the development of a checklist that can be used to standardize
assessments and criteria.
This article seeks to address three of these steps. First, we have proposed a series
of minimum standards for the adequate evaluation of competence for execution.
Second, we have interviewed a number of mental health experts who have
experience conducting competency for execution evaluations. The professionals
surveyed were not randomly selected, but rather were a sample of professionals who
Copyright (C 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
106
P. A. Zapf et al.
had agreed to be interviewed after being identified by the authors or others as having
conducted an evaluation of this type. We believe the results of this survey can be
used to help further develop standards and procedures for CFE evaluations. Finally,
in the last section of this article, we propose a checklist of interview topic areas to be
addressed by evaluators conducting assessments of competence for execution.
MINIMUM STANDARDS FOR ADEQUATE
COMPETENCY FOR EXECUTION EVALUATIONS
Minimum standards for CFE evaluations should parallel standards that apply to
other types of forensic assessment. That is, standardized procedures that are used
during the evaluation should be described to the subject of the evaluation as well as
in the examiner's report, assessment measures should be specific to the referral
issue(s), and the examiner should have a sound and sophisticated conceptualization
of the criteria for being not competent for execution. In addition, the knowledge
base of examiners should cover three domains: general legal competencies, forensic
assessment methodologies, and execution-related substantive content. Finally,
collateral information should be gathered. This might include (but would not be
limited to) information regarding life history, psychological history and disorders,
deterioration-related data, previous and current written reports, and interviews with
persons who have had extensive opportunities to observe the subject.
Although minimum standards for competency for execution evaluations can be
identified, these should not be equated with professional standards or guidelines for
these evaluations. Professional standards or guidelines, as we see them, are more
encompassing than minimum standards and form the basis for sound forensic
practice. Whereas an evaluation that meets only the minimum standards might
address the relevant issue in a perfunctory manner, an evaluation that also meets
professional standards or guidelines would go above and beyond simply addressing
the issue in an obligatory manner. An evaluation that meets minimum standards
might be a brief, narrowly focused, concrete, and surface inquiry into the psycholegal issue; 1 however, evaluations that meet professional standards should include
informative and useful statements about the individual being evaluated and supply a
detailed analysis of the issue to be addressed in the form of observations and
statements that provide justification for the findings and opinions. An evaluation
that meets professional standards should not only be useful to the court, it should
ultimately be defensible in court. What follows is a discussion of assessment issues
and professional guidelines for evaluations of competency to be executed.
ASSESSMENT ISSUES RELATED TO COMPETENCY
FOR EXECUTION
There has been a dearth of empirical research conducted on competency to be
executed. Part of the explanation may be the fact that only a handful of individuals
1For instance, an examiner could conceivably conduct the interview portion of a CFE evaluation by
asking only two questions: (i) Are you going to die? and (ii) Do you know why you are going to die?
Copyright t: 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
Assessing competence for execution
I 07
have made successful claims of incompetency to be executed.2 In addition, this
particular type of competency tends to evoke strong emotion in individuals, which, in
tum, may impact upon the motivation of involved professionals to conduct research
in this area. The limited amount of research that has been conducted has been
confined to surveys, usually oflegal professionals (see e.g., Miller, 1988). No studies
have examined CFE-related criteria in death row inmates or forensic patients.
There has been more commentary on the assessment of competency to be
executed than there has been research. Heilbrun ( 1987) discussed the implications
of the Ford decision for the assessment of competency to be executed and made five
practical suggestions. First, with regard to the mental health professionals who are
selected to evaluate an inmate's competency to be executed, Heilbrun argues that
these evaluators need to have demonstrated skill in general clinical as well as
clinical-legal areas. In addition, he makes the case that these professionals need
to be chosen in a manner that eliminates the possibility of any systematic bias
operating in the evaluation. For example, systematically eliminating (or including)
only those evaluators that favor the death penalty from the potential pool of
professionals who will conduct these evaluations may serve to introduce bias into
the process that may not have otherwise existed. Second, Heilbrun contends that
evaluators must (and, in fact, are ethically obliged to) inform any individual of the
nature and purpose of a forensic evaluation before beginning. This is especially true
in the case of competency to be executed. Evaluators should attempt to ensure that
the inmate understands this notification of purpose (e.g. present the information
using easily understood language; ask questions to attempt to determine the
inmate's understanding of the information). Third, Heilbrun emphasizes the
importance of a comprehensive evaluation, that is, including an assessment of
intellectual functioning, personality characteristics, and motivation in addition to
symptoms of psychopathology; having more than one contact with the inmate whose
competence is being evaluated; an assessment of the possibility of malingering; and
the use of collateral or third-party information. Fourth, the circumstances of the
evaluation, which include the people who are present in the daily life of the inmate as
well as the physical environment, need to be taken into consideration by the
evaluator. Finally, Heilbrun underscores the importance of comprehensive documentation, usually in the form of a written report, to assist the decision maker and to
allow others access to the procedures and reasoning processes used by the evaluator.
Heilbrun and McClaren (1988) discuss the assessment of competency for
execution in terms of both preadjudication (before a formal legal judgment about
an inmate's competency for execution has been made) as well as postadjudication
(after an inmate has been legally deemed incompetent for execution). Given that
only a handful of individuals have ever been found to be incompetent for execution
(and would therefore require postadjudicative assessment of this type of competency), preadjudicative assessment of competency for execution is certainly the
more prevalent type of assessment. Of course, the reader must keep in mind that
assessments of competency for execution are much less common than assessments
of almost any other type of competency.
With regard to the preadjudicative assessment of competency for execution,
Heilbrun and McClaren (1988) outline a number of 'minimum requirements for
2
At the time of writing, we have been able to find only six post-Ford cases of individuals found incompetent.
Copyright ((J 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
108
P.A. Zapf et al.
performing an excellent evaluation' and suggested that evaluators make their
participation contingent upon having these minimum requirements met (p. 208).
In addition, Heilbrun and McClaren argue strongly for the formal assessment of
intellectual functioning, motivation, and psychopathology using well validated and
standardized assessment instruments.
With respect to the legal criteria that need to be assessed, evaluators should be
aware of the particular legal criteria that define the standard for competency within
the relevant jurisdiction.. If the criteria for competency for execution within a
particular jurisdiction are not specified, Heilbrun and his colleagues (Heilbrun,
1987; Heilbrun & Mcclaren, 1988) advise that evaluators should consider the
standard in its broadest form and then leave it up to the court to determine what is
applicable and what is not. As previously mentioned, Zapf (2002) argues that,
regardless of the specific criteria set out in a particular jurisdiction, a comprehensive
evaluation of all relevant aspects of competency for execution be conducted and
delineated in the report to court.
With regard to the postadjudicative assessment of competency to be executed,
Heilbrun and MacClaren (1988) maintain that evaluators who are involved in the
assessment of competency for execution at this stage should be independent of those
who are responsible for treating the inmate for the purposes of restoring competence.
Mathias (1988) also observed the importance of taking the physical and social
environment of the inmate into account when evaluating an individual's mental
state on death row. He indicated that there are many variables that operate in the
environment of death row that may affect an inmate's psychological functioning and
presentation and may impact upon a mental health evaluation in a variety of
different ways. The nature of a maximum-security setting can have a great impact
upon an inmate's mental health and may affect competency status. Mathias argued
that evaluators of an individual's competency need to consider these variables when
conducting evaluations of competency to be executed.
Small and Otto (1991) explored the legal context and the clinical aspects of
evaluations of competency to be executed. These authors encouraged the use of
evaluation techniques that focus on the functional capacity of the inmate. Differing
slightly from Heilbrun and his colleagues (Heilbrun, 1987; Heilbrun & McClaren,
1988) with respect to the use of traditional psychological testing, Small and Otto
stated 'evaluations that emphasize traditional psychological testing and assessment
are unlikely to assist the decision maker in assessing functional abilities' (p. 152; see
also Melton et al., 1997). Consistent with this argument is the fact that the
education level and/or mental state of many offenders on death row may render
many traditional psychological tests invalid. Small and Otto do, however, concede
that psychological testing may assist in identifying the core mental disorder, making
treatment recommendations, or detecting malingering.
PROFESSIONAL STANDARDS FOR COMPETENCY
FOR EXECUTION EVALUATIONS
In the introduction of this article, we argued that the more unstructured and vague
the criteria and goals are for any given task, the more likely it is that a clinician's own
values and biases will impose on the task. We believe that the existence of accepted
Copyright :(:: 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21; 103-120 (2003)
Appendix C
Assessing competence for execution
109
professional standards for CFE evaluations will reduce the likelihood that clinicians'
biases and values will undermine the integrity of their CFE evaluations. As we
consider appropriate professional standards for the assessment of competence for
execution (see also Brodsky et al., 200 l; Heilbrun, 1987; Heilbrun & McClaren,
1988; Melton et al., 1997; Miller, 1988; Small & Otto, 1991) it is prudent to
extrapolate from the work on the assessment of other types of competency (such as
competence to stand trial and competence to consent to treatment) and to apply
these professional principles to the assessment of competence to be executed. In this
section, we propose professional guidelines for CFE evaluations.
Knowledge Base
Before conducting a CFE evaluation, evaluators should be familiar with the relevant
statutes, definitions, and criteria for competency for execution in their jurisdiction.
In addition, CFE evaluators should be familiar with the procedural aspects of
competence for execution cases within their jurisdiction (i.e. how, when, and by
whom the issue of competence for execution may be raised; who determines that an
evaluation is to occur; and what procedures are specific to the evaluation process). A
competent evaluator should be knowledgeable about these legal requirements and
procedures before beginning an evaluation of CFE. The evaluator should consult
with whoever has ordered the evaluation to clarify the referral question and to ensure
that all parties involved understand what is to be evaluated.
General Evaluation Procedures and Considerations
We now discuss what it means to have a clear understanding of the referral question
and how to decide when to consult with the individual requesting the evaluation.
For example, an evaluator may be the only expert retained or may be one of several
and assigned to evaluate one aspect of functioning (e.g. mental retardation). In this
instance, it would be necessary for the evaluator to be clear about the boundaries of
the specific case. CFE evaluations should be conducted in a place with adequate
space and privacy that is free from distraction. In addition, CFE evaluators should
seek to meet with the offender on more than one occasion as part of an assessment of
consistency, deterioration, improvement, and other changes. Finally, CFE evaluations should include a clinical-forensic interview in which the offender's psychiatric
history, symptom validity, and understanding of the relevant legal criteria for CFE
in the particular jurisdiction are assessed. The relevant psycholegal criteria should
be assessed in a structured and replicable manner. The information gained from the
interview should be considered in light of collateral information that has been
collected.
Clinical-Forensic Interview
At the beginning of the forensic interview, CFE evaluators should inform the
offender of the nature and purpose of the evaluation, the possible outcomes of
the evaluation, for whom the evaluation is being performed, who will have access to
Copyright ({:; 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
110
P.A. Zapf et al.
the results of the evaluation, and the consequences of not participating in the
evaluation. Any indication of a lack of understanding on the part of the offender
should be noted and appropriate measures taken to determine whether or not to
continue with the evaluation. During the interview, evaluators should assess the
offender's understanding of the relevant information in this the jurisdiction,
the offender's appreciation of his or her situation, and his or her reasoning about
these issues. In addition, the evaluator should inquire about the offender's previous
and current psychological functioning and psychiatric history as well as any
medication that the offender may be prescribed and its effect on the offender.
Assessment Measures
CFE evaluators should be aware of the psycho legal abilities required of a competent
offender. In the absence of a standardized assessment instrument specifically
developed to assess the psycholegal criteria for a given jurisdiction, the evaluator
should operationalize the applicable psycholegal criteria. Evaluators should focus on
the functional abilities of the offender, in addition to the mental state of the offender
and the appropriate diagnosis of a mental disorder, and should document how any
functional deficits may be causally related to mental, emotional, or intellectual
deficits. If it is a requirement of the jurisdiction that the offender be able to assist his
or her attorney, then a true functional assessment would include observing the
interaction of the offender with his or her attorney and attempting to determine
whether or not the offender is able to assist the attorney (e.g. disclose relevant
information to the attorney, understand what it is that the attorney is attempting to
accomplish).
Finally, CFE evaluators should examine the possibility of response sets such as
defensiveness, uncooperativeness, or malingering. Every effort should be made to
use instruments that have established reliability and validity; after all, the motivation
to malinger in this situation may be high. It may be necessary to use an instrument
specifically designed to evaluate the potential for malingering or the authenticity of
reported symptoms. The evaluator should use other psychological tests in the
evaluation of CFE as indicated in a particular case (e.g. neuropsychological tests
if there is some question of cognitive or neuropsychological impairment).
Collateral Information
CFE evaluators should collect collateral information about the offender's previous
and current functioning, as well as his or her functioning while on death row
(including any specific behaviors that the offender has engaged in that might be
relevant to psycholegal understanding 3 ). Friends and family of the offender who can
comment on previous and current functioning and characteristics should be
interviewed. Correctional officers, prison physicians and psychologists, and other
prisoners should be asked to comment on the behavior of the offender while in the
3 These might include, but not be limited to, discussions of execution content with correctional personnel
or chaplains, writing letters of goodbye or issue resolution, writing a will, giving away possessions,
selecting witnesses, or making preferences for a last meal.
Copyright f; 2002 John Wiley & Sons, Ltd.
Bchav. Sci. Law 21: 103-120 (2003)
Appendix C
Assessing competence for execution
111
institution. Medical records and psychiatric history both within and outside the
correctional institution should be gathered and evaluated.
Presentation of the Results of the Evaluation
CFE evaluators should carefully document the evaluation procedures as well as all
other relevant information. Record keeping, note taking, and recording4 the interview are important considerations and should be meticulous as these assessments
are likely to undergo serious scrutiny. It is good practice for CFE evaluators to speak
to the individual who retained their services before preparing a report. Although it
remains arguable whether CFE evaluators should speak to the ultimate legal issue,
they should certainly present the evidence before the triers of fact in a manner that
will be of assistance in reaching a decision about whether the offender is capable of a
specific psycholegal ability or required capacity (e.g. include a full history, observations, and testing including descriptions or observations of the offender and perhaps
extensively quoting the offender's responses).
CURRENT PRACTICES IN THE ASSESSMENT
OF COMPETENCY FOR EXECUTION
To evaluate current practices in the evaluation of competency for execution and
identify assessment issues that are considered to be important by professionals who
conduct this type of evaluation, we interviewed seven mental health professionals
who have been involved in evaluating competency to be executed. We asked these
professionals about (i) their past experiences with specific cases in an attempt to
determine how they conceptualize the nature of this type of competency and the
pertinent issues in conducting this type of evaluation and (ii) specific checklist areas
that may or may not be useful and/or necessary to include in an interview evaluation
checklist for competency to be executed.
All seven of the mental health professionals that were interviewed held a Ph.D.
degree; one also held aJ.D. and one held an M.S.Ed. degree in addition to the Ph.D.
Two individuals had conducted (or were presently involved in) competency for
execution evaluations during the current year (in Arkansas and Tennessee), three
ochers had conducted their last evaluation of this type in the 1990s (in Alabama,
Missouri, and Texas), and two of the professionals last conducted a CFE evaluation
in 1989 (in Utah and Arkansas).
When asked about current practices in the evaluation of competency for execution, the professionals identified a number of components that they believe make up
the structure of a thorough CFE evaluation. Identified components included
reviewing case materials, prison records, medical records, trial transcripts, and
psychiatric records (including those during and prior to the offender's incarceration
on death row); examining statutes or relevant court decisions to determine the
4 Video or audio recording is useful in that the evaluator is able to review the evaluation as well as present
the tape to complement his or hc:r testimony; however, recording the evaluation is also subject to legalstrategic decisions by the attorney and, therefore, should be discussed with the retaining attorney
beforehand.
Copyright (I') 2002 John Wiley & Sons, Ltd.
Bchav. Sci. Law 21: 103-120 (2003)
Appendix C
112
1~. A. Zapf It al.
applicable criteria for a given jurisdiction; consulting with the retaining attorney;
interviewing and conducting psychological or other relevant testing with the
offender; interviewing family members of the offender, prison officials and correctional officers, and other offenders who have had contact with the offender; and
observing the offender in his cell on death row.
The CFE evaluators reported using a number of different psychological tests
during CFE evaluations including the MMPI (or MMPl-2), MCMI (or MCMI-II),
PAI, SADS, or PSE to assess psychopathology and test-taking style; the SIRS, VIP,
or Rey 15 to assess malingering (when indicated); the WAIS-R5, Shipley, TONI, or
K.FAST to assess intellectual functioning or to diagnose mental retardation; the
PPVT-R to assess language functioning; the BEERY or BNT to assess dementia;
the PCL-R to assess psychopathy (when indicated); the IFI to assess reasoning
ability; and the Halstead-Reitan to assess neuropsychological functioning (when
indicated). There was some disagreement about whether or not to use projective
techniques for this type of evaluation, with one professional indicating that he would
use the Rorschach 'when indicated,' and another stating that he would 'never' use
the Rorschach or any other projective technique for this type of evaluation. None of
the other CFE evaluators mentioned projective techniques.
In response to inquiries about the assessment of the specific criteria for incompetency, all of the evaluators indicated that they asked the offenders specifically
about each of the relevant criteria (for their respective jurisdictions). One evaluator
indicated that he also used an unpublished checklist of items (Ackerson, unpublished doctoral dissertation) and another evaluator indicated that he used a forensic
assessment instrument that was developed to assess an offender's reasoning abilities
(the Interdisciplinary Fitness Interview). In addition, all of the evaluators reported
that they focused specifically on the offender's understanding of death and the
reasons for it. Three of the evaluators indicated that they made an attempt to assess
the offenders' reasoning abilities, in addition to simple factual understanding, with
respect to death.
When asked about the most challenging aspects of the evaluation of an offender's
competency for execution, three global issues were identified: (i) the nature of the
inquiry itself and the gravity of the consequences, (ii) the difficulty the evaluator may
experience in trying to remain objective, and (iii) the evaluator's own personal
difficulties with the death penalty.
With regard to the gravity issue, the CFE evaluators reported feeling that the
magnitude and the immediacy of the consequences for the offender had an impact
upon their evaluation in terms of the amount of time and energy they put into
ensuring that they conducted a thorough and comprehensive evaluation. With
regard to objectivity, one professional, speaking candidly, indicated that he found
it difficult to maintain objectivity for three reasons: (i) you become sharply aware of
your own personal beliefs about the death penalty, (ii) you get to know the offender
and may not see anything to prevent the offender from being executed, and (iii) it is
difficult to resist the pull to affiliate with the attorneys who retained you as the case is
always presented to you from their point of view. Finally, with regard to the personal
... ,.............. .
. ...........................,...--··-······ ..
..............
......................... ...
................................. .
Thc reader is reminded that the majority of these evaluations were conducted a number of years ago and,
therefore, some of the instruments reported, while perhaps out of date now, were not out of date at the
time of the evaluation.
5
Copyright :('.: 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
Assessing competence for execution
113
difficulties, several CFE evaluators reported feeling that this type of evaluation can
be emotionally difficult for the evaluator because the task forces the evaluator to deal
with his or her own feelings and beliefs about capital punishment. When asked
whether they would consider conducting another CFE evaluation in the future, six
of the seven evaluators indicated that they would. Each of these evaluators felt that
they were prepared to do these evaluations with what they perceived as the necessary
amount of comprehensiveness and scrutiny. In addition, they felt that they would be
leaving this task co someone who might not do as thorough a job if they declined. It
appears that these evaluators were alluding to the distinction we made earlier in this
paper. That is, that some evaluators might conduct evaluations that meet only the
minimum standards rather than professional standards. The one evaluator who
indicated that he would not conduct another CFE evaluation stated that he has had
a change of heart with respect to capital punishment and no longer feels that the
death penalty is an acceptable form of punishment. This evaluator felt that
individuals who conduct this type of evaluation have to be in favor of the death
penalty. We do not agree with this assertion but did not poll other evaluators about
their opinions on this matter.
Specific problems that were encountered by these professionals in conducting
CFE evaluations included difficulty in accessing medical records from other
facilities, difficulty in finding a proper setting for this type of evaluation, difficulty
in gaining access to the offender at times (e.g. being required to interview from
behind glass at some facilities), difficulty in establishing or maintaining rapport with
embittered offenders or those who refused to cooperate, and insufficient allocation
of resources by the court (i.e. in terms of time required to obtain all the relevant
records as well as compensation).
When asked to give their opinions about their respective jurisdiction's criteria for
incompetency for execution, most of the evaluators indicated that they believed the
criteria to be very minimal standards that were patterned after Ford, which has a very
low threshold for competence. Several evaluators felt that the courts interpret the
Ford criteria as factual understanding, whereas they believe that the courts should
consider the higher standard of rational understanding when making CFE determinations. S~ilarly, when asked about the most difficult aspect of the CFE criteria to
assess, a number of evaluators felt that it was difficult to distinguish between a
factual and rational understanding of death. One evaluator indicated that this was
especially so since there is no 'gold standard' for understanding death. When asked
how they might change the CFE criteria if they could, a number of CFE evaluators
stated that they would further define the required level of understanding.
In addition to questions about current practices in the evaluation of CFE, the
CFE evaluators were also asked to give their opinions about items we had included
in a preliminary version of our CFE interview checklist. We now turn to the subject
of this last part of the inquiry: a checklist for CFE evaluations.
CHECKLIST FOR EVALUATIONS OF
COMPETENCY FOR EXECUTION
Prior to conducting the interviews with the CFE evaluators, we compiled a list of
content areas that we felt were important or useful to include in a checklist for
Copyright (f) 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
114
P.A. Zapf et al.
evaluations of CFE. We then asked the CFE evaluators about the importance and
utility of each of the checklist topics. Their responses were then used to revise and
edit the checklist topic areas. The revised version of the checklist is presented in the
Appendix. 6
The checklist is divided into four sections: understanding the reasons for punishment, understanding the punishment, appreciation and reasoning (in addition to
simple factual understanding), and ability to assist attorney. These four sections are
representative of the legal criteria for CFE that have been set out by various states
(see Acker & Lanier, 1997; Harding, 1994).
Most states model their statutes after the criteria set out in Ford and, therefore,
consider only the prisoner's ability to understand the punishment that is being
imposed and the reasons why it is being imposed. The first two sections of the
checklist parallel these two Ford criteria. The first section targets the offender's
understanding of the reasons for punishment: that is, his or her understanding of the
crime and other conviction-related information. Specific topic areas include the
offenders' understanding of the reasons why they are in prison; their place of
residence within the prison; the crime for which they were convicted, including an
explanation of the criminal act and victim identifying information; the perceived
justice of the conviction; reasons why other people are punished for the same
offense; and any self-identified, unique, understandings of the offense and trial that
the offenders may have. These areas were identified as relevant content areas to
determine the extent of the offender's factual understanding regarding punishment.
The second section targets the offender's understanding of the punishment: that
is, that the punishment he or she is facing is death. Specific topic areas include the
offender's understanding of the sentence; the meaning of a sentence of death; what it
means for a person to be dead; specific understandings about death from execution;
and the reasons for execution. The evaluators surveyed indicated that it was
important to ask questions about death from a number of different angles (e.g.
meaning of death, specific understandings about death from execution) so as to
facilitate a thorough evaluation of any irrational beliefs or ideas the offender may
hold regarding death.
The literature on other types of competence (e.g. competence to consent to
treatment) documents that there is often a relationship between the severity of the
consequences (to the individual being assessed) and the stringency of the standard
used to evaluate competence (see, e.g., see Roth, Meisel, & Lidz, 1977). This,
coupled with the gravity of the consequences in the particular instance of CFE, leads
us to believe that it is important to assess the offender's appreciation and reasoning
abilities (in addition to simple factual understanding). Therefore, the third section
of the checklist lists topic areas specific to the assessment of an offender's appreciation and reasoning abilities with respect to death and execution. Specific content
areas in this section include the offender's appreciation of the personal importance
of the punishment and the personal meaning of death; the offender's rationality or
reasoning about the physical, mental, and personal changes that occur during and
after execution; beliefs regarding invulnerability; inappropriate affect; acceptance or
eagerness for execution; and beliefs against execution. Although the Ford criteria are
6 A user-friendly version of the checklist (i.e. with space for the offender's responses and the evaluator's
comments) is available from the authors.
Copyright (f'; 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
Assessing competence for execution
115
often interpreted as the offender's factual understanding, we believe that mental
health professionals involved in CFE evaluations should also assess the offender's
appreciation and reasoning and leave it to the court to determine how to interpret
the Ford (or other relevant) criteria in each specific case.
Finally, the last section of the checklist identifies issues related to the offender's
ability to assist his or her attorney. This section will be especially relevant in
jurisdictions that rely upon criteria that are broader in nature than those outlined
in Ford, such as the capacity to comprehend the reasons that might make the capital
sentence unjust and to communicate these reasons effectively. Specific topic areas in
this section include the identity of the offender's attorney and the amount of time
that the attorney has been working for the offender; the offender's trust in the
attorney; awareness of execution date; status of appeals; what the attorney is
attempting to accomplish through the appeals; how the appeals will be processed
and assessed; the actual substance of the appeals; important content that the
offender may have withheld from the attorney; and any pathological reasons for
not planning or discussing appeals.
Using the Checklist
Several issues need to be emphasized regarding the use of this checklist. We have
intended this checklist to serve as an aide memoire to assist professionals in
conducting the interview portion of CFE evaluations. 7 While we have sought to
be comprehensive, the evaluator needs to be mindful that important issues might
arise in a particular case that have not been included in this checklist. Although the
purpose of this checklist is to guide the evaluator through relevant issues pertaining
to competence for execution, simply going through this checklist is not enough to
assess every individual adequately with respect to competence for execution. We
think of this checklist as an organizing structure to be used to guide the evaluator
through relevant topic areas in the assessment of competency for execution.
Specific areas of inquiry follow each of the topics included on the checklist.
Specific questions were deliberately not listed in order to encourage evaluators to
develop their own style of questioning for each of the content areas. On a related
note, it is important for evaluators to phrase questions in such a way so as not to lead
the offender to exaggerated or malingered pathological responses. This precaution
is, of course, part of all forensic interviewing in which evaluees may be motivated to
exaggerate or present false impressions of psychopathological disorders.
The available research on death row offenders indicates that they are disproportionately intellectually limited and academically deficient (Cunningham & Vigen,
1999, manuscript under review). Therefore, it is important for evaluators to use
language that is straightforward and understandable when evaluating a particular
offender. If a particular offender holds a known delusional system, it would be
important for an evaluator to assess this delusional system directly with respect to
the execution process, the reasons why this individual is to be executed, and what it
means to be executed, as well as the offender's beliefs about the perceived role that
his or her attorney plays in this process.
7The evaluator is cautioned that the interview is only one component of a comprehensive competency for
execution evaluation.
Copyright((': 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
116
P.A. Zapf et al.
CONCLUSION
In conclusion, we would like to make a few general points about the evaluation of
competency for execution. First, we encourage professionals who perform CFE
evaluations to think of them as being an area of specialization within their work.
Although CFE evaluations would probably not be an exclusive area of practice for
most practitioners (considering the low base rate of this type of evaluation), it is
important to treat it as a specialization and to devote concentrated and attentive
study, feedback, consultation, and continuing education to this task.
Second, we view CFE evaluations as an area of evolving practice. Although the
Ford criteria, specifically, have evolved little, the consideration and understanding of
what the Ford criteria mean to CFE evaluators appears to be evolving. In addition,
the practice of psychological evaluations in this arena continues to develop. We view
our work in this area as contributing to the dialogue and elaboration of issues that is
designed to move this evolution along to the next stages. We encourage other
professionals to do so as well in the interests of a fuller understanding of these
important issues.
Finally, this checklist represents a first step that will need to go through a process
that includes field-testing, standardization, and the development of norms. For this
to happen it will be important to receive feedback from professionals who use this
checklist in their practice.
REFERENCES
Acker, J. R., & Lanier, C. S. (1997). Unfit to live, unfit to die: competency for execution under modern
death penalty legislation. Criminal Law Bulletin, 33, 107-150.
Appelbaum, P. S. (1986). Competence to be executed: another conundrum for mental health professionals. Hospital and Community Psychiatry, 37, 682-684.
Bonnie, R. (1990). Dilemmas in administering the death penalty: conscientious abstention, professional
ethics, and the needs of the legal system. Law and Human Behavior, 14, 67-90.
Brodsky, S. L. (1990). Professional ethics and professional morality in the assessment of competence for
execution: a response to Bonnie. Law and Human Behavior, 14, 91-97.
Brodsky, S. L., Zapf, P. A., & Boccaccini, M. (1999). Post conviction relief: the assessment of
competence for execution. Proceedings of Psychological Expertise and Cn'minal Justice: An APAIABA
Conference for Psychologists and Lawyers (Vol. 2, pp. 189-201 ). Washington, DC: American Psychological Association.
Brodsky, S. L., Zapf, P. A., & Boccaccini, M. (2001). The last competency: an examination of legal,
ethical, and professional ambiguities regarding evaluations of competence for execution. Journal of
Forensic Psychology Practice, 1, 1-25.
Cunningham, M. D., & Vigen, M. P. (1999). Without appointed counsel in capital postconviction
proceedings: the self-representation competency of Mississippi death row offenders. Cn'minal Justice
and Behavior, 26, 293-321.
Ford v. Wainwright, 477 U.S. 399 (1986).
Harding, R. M. ( 1994). 'Endgame': competency and the execution of condemned offenders-A proposal
to satisfy the Eighth Amendment's prohibition against the infliction of cruel and unusual punishment.
St. Louis University Public Law Review, 14, 105-1 51.
Heilbrun, K. S. (1987). The assessment of competency for execution: an overview. Behavioral Sciences
and che Law, 5, 383-396.
Heilbrun, K. S., & McC!aren, H. A. (1988). Assessment of competency for execution: a guide for mental
health professionals. Bulletin of che American Academy of Psychiacry and the Law, I 6, 205-216.
Mathias, R. E. (1988). Assessment of competency for execution: assessment and dissonance on death
row-the dilemma of consultation. Forensic Reporcs, 1, 125-132.
Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1997). Competency co stand trial, psychological
evaluations for the courts: A handbook for menial health professional and lawyers (2nd ed.). New York:
Guilford.
Copyright CC 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
Assessing competence for execution
117
Miller, R. D. (1988). Evaluation of and treatment to competency to be executed: a national survey and
analysis. The Journal of Psychiatry and the Law, 16, 67-90.
Small, M. A., & Otto, R. K. (1991). Evaluations of competency to be executed: legal contours and
implications for assessment. Criminal Justice and Behavior, 18, 146-158.
Roth, L. H., Meisel, A., & Lidz, C. W. (1977). Tests of competency to consent to treatment. American
Journal of Psychiatry, 134, 279-284.
Zapf, P. A. (2002, March). The assessment of competency for execution: Going above and beyond the Ford
criteria. Invited participant, Mini Conference on Capital Case Litigation, Biennial meeting of the
American Psychology-Law Society: Austin, TX.
APPENDIX: INTERVIEW CHECKLIST FOR
EVALUATIONS OF COMPETENCY
FOR EXECUTION
This checklist was developed for use in evaluations of competency for execution.
The evaluator is encouraged to ask additional and follow-up questions to ensure a
thorough understanding of the offender's abilities in each area. Specific areas of
inquiry are included for each topic in the checklist.
I. Understanding of the reasons for punishment
i. Reason why in prison
a. How offender came to be in prison
b. What offender did to get there
c. Initial charges and how they led to actual conviction
d. Sequence of events from offense to arrest, trial, sentence, and then to
imprisonment
ii. Place of residence within the prison
a. Where offender currently resides within the prison, including number of
cell or dorm, name of cell block, and the area of the prison (e.g. protective
custody, segregation, death row, general population)
b. Prior places of residence within the prison, including hospital, segregation,
holding cells, or other units
iii. Conviction information
a. Crime for which offender was convicted
b. When offender was convicted
c. In what city or county, state, and court the trial was held
d. How long offender has been in prison
iv. Explanation of criminal act
a. Name of the criminal act offender committed
b. Similarities and differences between this and the actual behaviors involved
in the offense
c. What (insert charge for which offender was convicted) involves/entails
v. Victim identifying information
a. Name of the victim
b. Age of the victim
c. Whether the victim was a male or female
d. Ways in which the victim is described and understood by offender
vi. Perceived justice of conviction
a. What offender believes was just about his/her conviction
Copyright (() 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
118
P.A. Zapf ei al.
b. What offender believes was unjust about his/her conviction
c. Fairness, accuracy, and what was and would be right are explored
vii. Reasons other people are punished for same offense
a. What offender believes about why other people convicted of (same offense)
are punished
b. What offender believes about the type of punishment that anyone convicted
of (same offense) receives
c. Reasons for different degrees of punishment
viii. Self-identified unique understandings of offense and trial
a. Any special understandings of his/her offense that makes sense only to the
offender
b. Special understandings of his/her trial that makes sense only to the offender
c. Aspects of this charge or crime that most people would not understand
unless the offender told them
II. Understanding of the punishment
i. Sentence for the crime-specifically
a. Sentence that offender received for his/her conviction
11. Meaning of a sentence of death
a. Beliefs about what it actually means to receive a sentence of death
iii. Meaning when a person is dead
a. Beliefs about what it means for any person to be dead
b. Beliefs about what it would mean for him/her to be dead
c. How he/she would know that someone was dead
iv. Specific understanding about death from execution
a. Explanation of the procedures for execution that he/she will undergo: what
happens, how it works
b. Explanation of what will be done with his/her property after execution
c. Explanation of what will be done with his/her remains after execution
v. Reasons for execution
a. Reasons and beliefs about whys/he should be executed
b. Reasons and beliefs about why s/he should not be executed
c. Societal reasons, religious ideas, legal issues, involvement of other persons,
personalized reasons
III. Ability to appredate and reason in addition to simple factual understanding
The following items address the issues of appreciation and reasoning. Although
the criteria for competency to be executed from Ford v. Wainwright do not
specifically use the terms appreciation or reasoning, it may be important to
establish the offender's appreciation of the personal importance of these proceedings and reasoning or ability to rationally manipulate information regarding
the proceedings. 8
-·--·--···~·-
.... ···············----·····~
8 With respect to the criteria for competence to stand trial, many jurisdictions require the defendant to
have the ability to appreciate and reason in addition to simple understanding. In addition, the literature in
the area of competence to consent to treatment indicates that there is often a relationship between the
severity of the consequences and the stringency of the standard used to evaluate competence. Given the
serious nature of the consequences in the case of competence for execution and the fact that more than
the simple ability to factually understand is usually required for competence to stand trial, it would
therefore, make sense for a stricter standard than simply the ability to factually understand be used for
competence for execution. This standard could include understanding as well as appreciation, and
rationality or reasoning.
Copyright f; 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
Assessing competence for execution
119
i. Appreciation of the personal importance of this punishment
a. What it would mean to be executed
b. Issues of triviality, irrelevance, involvement, salience
ii. Appreciation of the personal meaning of death
a. What it will mean personally to be dead: events, activity, consequences,
changes
b. Ways in which the offender will be otherwise affected
c. Ways in which others (important to the offender) will be affected
iii. Rationality/reasoning regarding the physical changes during and after
execution
a. Explanation about whether s/he will be physically different after s/he is
executed (than s/he is now)
b. Explanation about exactly what happens physically when anyone is executed (and when the offender him or herself is executed)
iv. Rationality/reasoning regarding the mental changes during and after execution
a. Explanation about what will happen mentally when s/he is executed
b. Beliefs about whether and how s/he will be any different mentally after
execution than s/he is right now
v. Rationality/reasoning regarding other personal changes during and after
execution
a. Beliefs about transformations or changes that will happen to him/her after
execution
vi. Rationality/reasoning regarding beliefs in invulnerability
a. Reasons or beliefs why s/he will not or may not die when executed
b. Whether anything different would happen personally upon execution than
to anyone else who is executed
vii. Inappropriate affect about execution with associated rationality/reasoning
a. Current feelings when s/he thinl~s about being executed
b. How the offender imagines s/he will feel just prior to being executed
c. Unexpected or peculiar affect
viii. Rationality/reasoning regarding acceptance or eagerness for execution
a. Reasons why the offender might be looking forward to being executed
b. Reasons why the offender may have accepted his/her execution
ix. Rationality/reasoning regarding factors associated with beliefs that person
should not be executed
a. Reasons whys/he should not be executed
b. Reasons why s/he might not be executed
IV. Ability to Assist Attorney
1. Identity of attorney
a. Name of the offender's attorney
b. Where located
c. Address or phone number
d. What attorney looks like
ii. Time with current attorney
a. How long since this attorney has been retained by the offender
b. Last time that the offender saw or spoke to attorney
c. Frequency of correspondence with attorney
Copyright ([) 2002 John Wiley & Sons, Ltd.
Bchav. Sci. Law 21: 103-120 (2003)
Appendix C
120
P.A. Zapf er al.
d. Frequency with which the offender has seen attorney (over some length of
time)
iii. Trust of attorney
a. Trust in attorney's skills and competence
b. Trust in attorney's caring and investment in case
c. What the attorney has specifically done to show that he or she is
trustworthy
d. Indications that attorney can or cannot be trusted
e. Beliefs regarding for whom attorney works
iv. Awareness of execution date (if any) or likely date
a. Knows if execution date has been set
b. If a date has been set, what that date is
c. If a date has or has not been set, ideas about when he/she might be
executed
v. Status of appeals
a. Knowledge if whether attorney is currently working on an appeal, and, if
so, what it is
b. Knowledge of filings of any previous appeals on his/her behalf
c. What (if any) appeals are still available
vi. What attorney seeks to accomplish through appeals
a. Understanding of issues and goals in appeals
b. What could happen as a result of the appeals
vii. How appeals will be processed and assessed
a. Understanding of what happens as appeals are processed and assessed
b. Knowledge of who is responsible for hearing and making a decision about
appeals
viii. Actual substance of appeals
a. Whether the offender has read any of the information prepared for the
appeals
b. Offender's understanding about what issues the appeals are based on
1x. Important content withheld from attorney
a. Whether attorney has been told everything needed in order to file appeals
on the offender's behalf
b. Anything that the offender has deliberately withheld from his/her lawyer
c. Any information that the offender would never tell his/her lawyer
x. Pathological reasons for not planning or discussing appeals
a. Any personal reasons that other people might not understand for why
offender might not plan an appeal
b. Any special reasons why the offender might not discuss an appeal
c. Anything happening that keeps the offender from believing attorney or
speaking freely with attorney
Copyright ((': 2002 John Wiley & Sons, Ltd.
Behav. Sci. Law 21: 103-120 (2003)
Appendix C
APPENDIX D
Re: John Dale Allen
September 9, 2016
The Honorable Carter Tarrance
392nd Judicial District Court
Henderson County, Texas
Re: Mr. Randall Mays
DOB: 8/3/59
Dear Judge Tarrance:
Enclosed is my report concerning the psychiatric evaluation of Mr. Randall Mays,
performed on June 6, and August 18, 2016, at the Polunsky Unit in Livingston, TX. This
evaluation was performed pursuant to your request, in order to assess Mr. Mays’s
competency to be executed. The opinions expressed in this report represent my
professional opinion to a reasonable degree of psychiatric certainty, based upon my
clinical interviews with Mr. Mays and review of relevant records provided by the State
and defense counsel.
A copy of this report is being sent only to you.
Summary of Qualifications
My name is Bhushan S. Agharkar, M.D. I have been licensed to practice medicine in
Georgia since 2002. I am a psychiatrist in private practice with Comprehensive
Psychiatric Services of Atlanta. I am an Assistant Professor of Psychiatry at Morehouse
School of Medicine and a Clinical Assistant Professor with the Emory University School
of Medicine. I earned my Doctor of Medicine degree from the State University of New
York Health Science Center at Syracuse, completed my residency at Emory University
School of Medicine Department of Psychiatry and Behavioral Sciences where I was
Chief Resident, as well as a Forensic Psychiatry Fellowship. I hold dual board
certification as a Diplomate of Adult Psychiatry (AP) and Forensic Psychiatry (FP) of the
American Board of Psychiatry and Neurology (ABPN). I am also a Distinguished Fellow
of the American Psychiatric Association.
4062 Peachtree Road NE, Suite A-203 | Atlanta, GA 30319
Tel: 404.939.6636 | Tel/Fax: 866.824.5215
Appendix D
Re: Randall Mays
Sources of Information:
I was appointed by the Court to conduct a psychiatric evaluation of Mr. Mays. I
conducted face-to-face clinical interviews of Mr. Mays on June 6, and August 18, 2016,
for approximately 2 and 1.5 hours, respectively. I have also reviewed documentary
information regarding Mr. Mays, attached as an index.
Notification of Non-Confidentiality:
At the outset of the evaluation, I informed Mr. Mays that I was conducting a psychiatric
evaluation, that it was not confidential, that anything he told me I might be asked to
testify about in a hearing, and that a copy of this report would be sent to you. Mr. Mays
stated that he understood these conditions and agreed to proceed. At our second visit,
though he recalled my name and occupation, he needed a reminder as to what I was
assessing and at who’s direction.
History of Presenting Problem:
Mr. Mays is a 57-year-old Caucasian male who was incarcerated after his murder arrest
approximately nine years ago and sentenced to death in 2008. During our interviews, Mr.
Mays was guarded and paranoid. He frequently minimized his symptoms or responded,
“I don’t like to dwell on negative things.” He would often answer, “I don’t think about
those things,” when asked about his current legal circumstance. Mr. Mays was often
perseverative and disorganized in his responses. He complained that the guards poison
him in the prison by tampering with his food and pumping pepper gas through the air
vents. He quickly derailed into talking about acid rain and how this affects him in the
prison by making him drowsy, fatigued, and “can’t think.”
Mr. Mays reported that the medications given to him in the prison cause him to
hallucinate and therefore, he does not take them. He was able to recount that he was
diagnosed with Schizophrenia and depression in the past but did not believe he has these
illnesses because “everyone has this, don’t they?” He did admit to having “thinking
problems” including problems with his memory but did not want to discuss this further,
saying he wanted to “stay positive.”
Mr. Mays reported hearing the voice of God talk to him directly since he was a newborn.
He described the voice as male and intermittent in frequency, originating from outside his
head. He claimed that he tried to climb the roof of a building as a child to “get closer to
God” and was stopped by an adult in the vicinity. He further discussed that since his
incarceration, he received a patent on his design for a renewable energy source. While it
was difficult to follow his thinking, he described his invention as a way to transfer “flux
energy” from a transformer. However, he believes the prison has leaked the nature of his
invention to the general public because it was only after he sent out the paperwork on his
!2
Appendix D
Re: Randall Mays
patents from the Texas Department of Corrections that he started seeing the technology
discussed in newspapers. Mr. Mays thinks the technology is already being used in
Arizona and Pennsylvania because the prison leaked it.
Based on Mr. Mays’s perception that the prison is aware of his technology patent, he
believes the state of Texas is trying to execute him to keep him from making his
invention. He said, “a lot of businesses would lose a ton of money,” and the major
electric and oil companies would not want to see this invention made because it would
save the average consumer a great deal of money and put them out of business. He also
believes Texas wishes to execute him so they would not have to pay for all his medical
costs, which he believes to be significant. Mr. Mays also stated to me that the warden
could be pressured by the power companies to execute him since they would stand to lose
“billions of dollars” if his invention was made. He also told me the warden makes “a lot
money by executing me” and that he’s “paid a lot of money to do it,” though it was not
clear to me if this money would come from the electric/power companies.
Keeping Mr. Mays on task was a challenge as his thought processes were tangential and
often involved persecutory and paranoid delusional beliefs. When I attempted to press
him on details or explore some of the statements he made, Mr. Mays quickly changed the
subject or refused to answer. It appeared he knew what sounded “crazy” and did not
want to appear mentally ill. He fixated on various medical issues and somatic complaints
and in fact, accused me of not being a medical doctor because I would not aid him in his
medication needs. This necessitated my having to remind him again of the nature and
purpose of our evaluation. The more I tried to get details from Mr. Mays and explore his
reasoning, the more agitated and paranoid he became. In fact, he noticed my shirt had a
name and series of numbers on it and he inquired as to its meaning. When I explained
that it was the name of the manufacturer and that I did not know what the numbers meant,
he scoffed and said, “Yeah, right. You mean to tell me you’re wearing a shirt but have no
idea what the code means huh? Okay…” in a suspicious and disbelieving tone. Mr.
Mays became more guarded and defensive and it was apparent he believed my shirt
contained some hidden message or code that I was not sharing with him. It was unclear if
he understood what the “code” was as he refused to answer my questions about this. He
then accused me of trying to “psyche him out” and “put words in his mouth” though he
would not tell me what he thought I was trying to get him to say.
Brief History:
Personal History:
Mr. Mays grew up in Eustace, Texas, and dropped out in the tenth grade. He reported his
parents divorced when he was six years old. He refused to answer questions about how
he was disciplined at home. He has worked as a welder, a mechanic, and in construction.
He reported using marijuana, alcohol, and methamphetamine regularly during adulthood.
However, he stopped drinking alcohol in 2005 and stopped using methamphetamine in
!3
Appendix D
Re: Randall Mays
his 20’s. He said he and his wife used to drink heavily and that he had withdrawal
symptoms when he stopped drinking. He reported being psychiatrically hospitalized two
or three times in his life.
Medical History:
Mr. Mays endorsed a history of hepatitis C, though he was not sure of that, and reported
multiple head injuries over his lifetime.
Family History:
Mr. Mays reported his uncle possibly has Alzheimer’s disease and there may be other
family members who do as well, but he could not recall.
Formal mental status examination:
Mr. Mays was a 57-year-old Caucasian man of average height and slender build, dressed
in jail attire. His grooming appeared adequate. His left arm was deformed consistent
with his reported prior injury. He was irritable at times and had reasonable eye contact
with his examiner throughout the interview. His speech was within normal limits. He
was oriented to person, place, time and situation. He endorsed an “ok” mood overall.
His affect was restricted. He denied current auditory and visual hallucinations. He
denied any homicidal or suicidal thoughts or attempts in the recent past. His thoughts
were often disorganized, perseverative, and tangential. He could not follow and
demonstrate an organized series of hand movements. He could not accurately recall a
short story fifteen minutes after I read it to him. When asked to name all the letters of the
alphabet that rhyme with the word “key,” he incorrectly responded, “b, n, k, g, s, and h.”
He could not accurately draw a clock showing the time “11:10.” Instead he drew:
He initially placed the hour hand at the 4 o’clock position then, realizing his error,
changed it to the 1 o’clock position. This was still incorrect.
!4
Appendix D
Re: Randall Mays
When asked to draw a complex figure after being shown this picture, he copied:
After approximately fifteen minutes, he was asked to draw this figure from memory. The
image degraded as follows:
When asked simple standard questions to detect for overt malingering such as the colors
of the United States flag and how many legs a dog has, he answered these questions
correctly.
Assessment:
Mr. Mays is a 57-year-old Caucasian male who has been sentenced to death. A
psychiatric assessment was requested to ascertain if he was competent to be executed.
Based on my clinical interviews and review of collateral information, it is my opinion, to
a reasonable degree of psychiatric certainty, that Mr. Mays is not competent to be
executed.
Mr. Mays appears to have had a long history of psychotic mental illness most consistent
with Schizophrenia. There are numerous reports of odd and bizarre behaviors dating
back at least thirty years. He has reported persecutory and paranoid delusions pre-trial to
mental health professionals and letters he has written from prison indicated his designs
and plans for “renewable energy.” He appeared overtly paranoid and irritable at times in
our interviews. His thought processes were often disorganized and tangential. He would
often fixate and perseverate on topics unrelated to our discussion or on insignificant
matters as they arose. These symptoms are consistent with Schizophrenia.
!5
Appendix D
Re: Randall Mays
According to the neuropsychological testing by Joan W. Mayfield, Ph.D., Mr. Mays
demonstrated significant deficits in executive functioning and memory impairment. She
diagnosed him in 2009 with Dementia Not Otherwise Specified. The types of damage
detected by Dr. Mayfield’s battery are consistent with Mr. Mays’s poor performance on a
number of neurocognitive screenings with me. His inability to accurately draw a clock or
complex figure from memory, his inability to recall details from a short story read to him
fifteen minutes prior, and his inability to correctly sequence a pattern of organized hand
movements are consistent with the deficits seen in Dr. Mayfield’s more extensive
neuropsychological battery. These deficits were primarily in the frontal and temporal
lobes. These areas of the brain are responsible for memory, affect and mood regulation,
impulse inhibition, effective weighing and deliberating, and the ability to see the longterm consequences of your behavior.
Mr. Mays has a severe and persistent deteriorating brain disease. The combination of a
psychotic condition in addition to a dementing cognitive process is worse than either
alone for Mr. Mays. In other words, these illnesses would exert a synergistic effect on
each other. He is not receiving treatment for either his mental illness or dementia. While
neither is a curable condition, medications may be helpful is slowing the progression of
the illness and ameliorating some of his psychotic symptoms. Antipsychotic medication,
while potentially helpful for Mr. Mays’s delusional beliefs and aberrant thought
processes, are unfortunately not particularly effective for the cognitive deficits he
exhibits.
It is the combination of conditions Mr. Mays suffers from that impacts his current
competency. He has a profoundly delusional belief system involving paranoid and
grandiose beliefs. He evidenced disorganized and irrational thought processes which
were not amenable to redirection, clarification, or confrontation. In fact, when I
attempted to gather more details and clarify his beliefs, they became further entrenched
and he grew more paranoid and irritable. Consistent with his brain damage, I found Mr.
Mays unable to effectively weigh and deliberate options given to him. He was often
perseverative in his responses. Thus, while Mr. Mays knew where he was located and
that the state of Texas intended to execute him, he did not evidence a rational
understanding as to why. His beliefs about why he is to be executed are rooted in
delusional thinking, the product of a severe psychotic mental illness and a damaged brain.
Indeed, it is particularly his significant brain damage that makes it extremely unlikely that
Mr. Mays will ever rationally understand why he is to be executed as this condition
exacerbates his paranoia and severely hampers his ability to rationally consider his
present situation. It is therefore my opinion, to a reasonable degree of psychiatric
certainty, that Mr. Mays is incompetent to be executed.
I considered the possibility that Mr. Mays malingered his impairments but in my opinion,
he did not. Given his minimization of mental health symptomatology, that the symptoms
!6
Appendix D
Re: Randall Mays
elicited and observed are consistent with other mental health professionals’ observations
and reports in the past, his demonstration of aberrant thought processes, not just thought
content, often unknown to laypeople, that his difficulties on neurocognitive screenings
with me matched Dr. Mayfield’s testing results, and his correctly answering simple
standard questions to detect overt malingering with me, I do not believe Mr. Mays to be
malingering.
If you have any questions about this report, I would be happy to answer them. Please feel
free to telephone me at 404.939.6636.
Sincerely,
!
Bhushan S. Agharkar, M.D., D.F.A.P.A.
Distinguished Fellow, American Psychiatric
Association
Diplomate, American Board of Psychiatry
and Neurology, with Added Qualifications in
Forensic Psychiatry
!7
Appendix D
APPENDIX E
G
WW
GEORGE W. WOODS, JR., M.D., F.A.P.A.
A PROFESSIONAL CORPORATION
DIPLOMATE OF THE AMERICAN BOARD OF PSYCHIATRY AND NEUROLOGY
415 503 3959
E-mail:gwoods@georgewoodsmd.com
Oakland Atlanta Evansville
May 1, 2017
The Honorable Joe D. Clayton
Senior State District Judge
First Place
100 E. Ferguson, Suite 1114
Tyler, Texas 75702
Re:
Randall Mays (DOB 8/3/1959)
Cause No. B-15,717 – The State of Texas v. Randall Wayne Mays
Article 46.05 Report
Your Honor,
I have performed a neuropsychiatric examination of Mr. Randall Mays pursuant to the Agreed
Order on Preliminary Article 46.05 Proceedings, dated February 18, 2016.
In order to complete this examination, I reviewed the documents provided by the Court and listed
on the index of Materials Reviewed. (Exhibit A) I conducted an interview with Mr. Mays on April
27, 2017.
Referral Question
The Court’s referral questions are as follows:
1. Does Mr. Mays suffer from a mental illness or mental impairment?
2. If so, does Mr. Mays’s mental illness or mental impairment deprive him of a rational
understanding of the connection between his crime and punishment, i.e., “if [Mr.
Mays’s] mental state is so distorted by a mental illness that his awareness of the crime
and punishment has little or no relation to the understanding of those concepts shared
by the community as a whole?” Pannetti v. Quarterman, 551 U.S. 930, 958-59 (2007).
1
Appendix E
In its order, the Court further instructed:
In making the foregoing determination, the expert shall consider whether Mr. May’s mental
illness or mental impairment deprive him of: (1) a rational understanding that he is to be
executed and that the execution is imminent or (2) a rational understanding of the reason
he is being executed. (TEX CODE CRIM. PRO. ART. 46.05(h).)
The Court has further provided a copy of the article, “Assessment of Competency for Execution:
Professional Guidelines and an Evaluation Checklist.” (Zapf et al, 2002)
Summary
Mr. Mays suffers from Major Neurocognitive Disorder. It has been documented that his cognitive
functioning has been historically limited. Dr. Mayfield’s examination establishes an extremely low
baseline IQ and documents significant impairments in memory, being able to effectively weigh and
deliberate, understand the big picture, and understand context. Current findings indicate a severe
decline in cognitive functioning from that baseline. Mr. Mays also has a long history of severe
mental illness. He has received some treatment; however, most of his life, his condition has largely
gone untreated. This includes during his incarceration in the Polunsky Unit. His neurological
deficits are amplified by profoundly delusional thinking and psychotic presentation.
It is my professional opinion, which I hold to a reasonable degree of neuropsychiatric certainty,
that Mr. Mays suffers from several neuropsychiatric disorders that impact his understanding of
the capital proceedings he currently faces. Mr. Mays’ is unable to rationally understand why he is
being executed. Therefore, he is incompetent to be executed.
Qualifications
I am a licensed physician specializing in neuropsychiatry. I have offices in Oakland, California;
Atlanta, Georgia; and Evansville, Indiana. My private practice focuses on neurodevelopmental
disabilities, acquired neurocognitive disorders, cognitive impairments secondary to
neuropsychiatric disorders, ethnopsychopharmacology, workplace safety, and consultationliaison psychiatry, i.e., medical disorders with psychiatric manifestations. For the last thirty-four
years, I have assessed and treated clients with developmental disabilities, acquired brain injuries,
and cognitive impairments secondary to neuropsychiatric disorders. In addition to my clinical
practice, I also perform forensic consultations in civil and criminal cases.
I am a lecturer at the University of California, Berkeley – Boalt Hall, School of Law. I teach a course
on Law and Mental Health with Jennifer Johnson, Esq. Ms. Johnson and I also teach a continuing
education webinar, “Where Mental Health Meets the Law,” a comprehensive curriculum that
tackles the evolving field of forensic mental health through Thomson Reuters West Legal
Education. I am currently on sabbatical from my position as Adjunct Professor at Morehouse
2
Appendix E
School of Medicine in Atlanta, Georgia, where I teach “Clinical Aspects of Forensic Psychiatry” and
“Introduction to Geriatric Psychiatry.”
I have written extensively about the forensic assessment of neurodevelopmental disorders,
cognitive impairment in the elderly, fetal alcohol spectrum disorder, trauma, financial deception
in elderly populations, comorbidity and the death penalty.
I am a Fellow of the American Psychiatric Association. I am a member of the Northern California
Psychiatric Association, the California Psychiatric Association, the American Neuropsychiatric
Association, the International Neuropsychological Society, and the American Psychological
Association. I am also a member of the American Association on Intellectual and Developmental
Disabilities (AAIDD) and the AAIDD Task Force on the Determination of Intellectual Disability for
the Courts. I co-wrote two chapters in the AAIDD Manual, The Death Penalty and Intellectual
Disability. I am also a member of the International Association for the Scientific Study of
Intellectual and Developmental Disabilities (IASSIDD), and I am Deputy Chairperson for the
Challenging Behavior Specific Interest Research Group (SIRG). I serve as Editor for the Challenging
Behavior and Mental Health Special Interest Research Group (SIRG) newsletter and as Associate
Editor for the Journal of Practice and Policy for Intellectual Disabilities for IASSIDD. I am President
of the International Academy of Law and Mental Health (IALMH) and serve on the Scientific and
Executive Committees.
I received my medical degree from the University of Utah in 1977. I completed my psychiatric
residency at Pacific Medical Center in San Francisco, California. The medical training I have
undertaken since my residency has been geared toward a neuropsychiatric practice that combines
an understanding of the relationships among psychiatric disorders, brain dysfunction, metabolic
disruption, and endocrine abnormalities. It has been supplemented with training in neuroanatomy
and neuropsychological investigation, psychopharmacology, neuroimaging, and other relevant
subjects, such as sleep disorders, intellectual disability, developmental disability, and
dysmorphology, which is the study of structural abnormalities in bone which often relate to
developmental disorders.
I participated in a National Institute of Mental Health/American Psychiatric Association Fellowship
(NIMH/APA) directly after my residency. During the fellowship, I developed the first
medical/psychiatric unit at Pacific Presbyterian Hospital. This u
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.