Opposition Brief — Wade Greely Lay, Petitioner v. Oklahoma

i i

IN THE DISTRICT COURT OF PITTSBURG COUNTY?"

STATE OF OKLAHOMA nam a aM

202 JAN <-S AMT ET

OM STH CO

THE APPLICATION OF: . a)

WADE GREELEY LAY, CASE NO.: CV-2021-234 ==}

CIVIL MISCELLANEOUS

AGREED ORDER FOR COMPETENCY EVALUATION

Wade Lay, an inmate on death row at Oklahoma State Penitentiary (“OSP”), is scheduled

to be executed on June 6, 2024. Mr. Lay’s case is currently set for a jury trial on his competence

to be executed, pursuant to 22 O.S.2021, § 1005, on this Court’s May 2024 docket.

In advance of the jury trial, the State wishes to obtain an evaluation of Mr. Lay’s present

competence to be executed by a qualified forensic examiner from the Oklahoma Department of

Mental Health and Substance Abuse Services (“ODMHSAS”). If ODMHSAS determines that Mr.

Lay is presently incompetent, the State will reassess the necessity of a jury trial. If ODMHSAS

determines that Mr. Lay is competent, a jury trial will be necessary.

The Court agrees that it is in the best interest of all parties to fully and fairly determine Mr.

Lay’s competence, and to potentially avoid a jury trial if Mr. Lay is not competent. It is hereby

ordered that a qualified forensic examiner from ODMHSAS evaluate Mr. Lay at the Oklahoma

Forensic Center (“OFC”) in Vinita, Oklahoma in order to determine his present competence to be

executed. The examiner shall answer the following questions:

1. Does Mr. Lay have a rational understanding of the fact that he will be put to death and

that his execution is imminent?

2. Does Mr. Lay have a rational understanding as to the reason for his execution. i.e., that

he was convicted of murder?

001

The examiner shall complete the evaluation and provide his or her report to the Court, and

to counsel for the State and Mr. Lay, no later than March 1, 2024. No persons, other than the

examiner, shall be present for the evaluation, unless the examiner requires the assistance of another

member of ODMHSAS.

The Oklahoma Department of Corrections (“DOC”) is hereby ordered to transfer Mr. Lay

to OFC for the purposes of this examination. DOC shall coordinate with ODMHSAS regarding

the date(s) of the evaluation. Should ODMHSAS require more than one day for the evaluation,

Mr. Lay shall be kept at OFC until the evaluation is complete and then returned to OSP at the

conclusion of the evaluation.

It is further ordered that DOC provide ODMHSAS, and counsel for both the State and Mr.

Lay, with copies of Mr. Lay’s mental and physical health records. In addition, DOC employees,

staff, and anyone with whom it has contracted regarding Mr. Lay’s mental and physical health are

hereby authorized, but not required, to disclose information regarding Mr. Lay’s mental and

physical health to the forensic examiner. Provided, however, that counsel for the State and Mr.

Lay must arrange any conversations with the individuals indicated in the previous sentence through

either Benjamin Betts or Kari Hawkins with ODOC’s general counsel’s office.

The Court further orders counsel for Mr. Lay to provide ODMHSAS with copies of all

materials it has provided to this Court in this matter. The State is ordered to provide the following

to ODMHSAS: Trial transcript from the original jury trial; the OCCA opinion in No. PCD-2006-

1013; The Order from the Northern District of Oklahoma denying Habeas Relief; the Order from

the Tenth Circuit denying habeas relief; transcripts from the November 29, 2021 Mandamus

hearing held in Pittsburg County and all reports of any expert who has evaluated Lay since his

original arrest (if not already provided by counsel for Mr. Lay). The examiner is hereby authorized

002

to contact counsel for the State or Mr. Lay in order to seek information he or she deems necessary

to the evaluation. The examiner is further authorized to discuss the contents of the report with

counsel for the State or Mr. Lay after the report is submitted to the Court.

Dated this g dayof JAN 2024

TIM MILLS. 06 OF THE DISTRICT COURT

003

Ne

IN THE DISTRICT COURT OF THE 18TH JUDICIAL DISTRIGY = aS ~

WITHIN AND FOR PITTSBURG COUNTY, STATE OF OKLAHOMA,

a

. BAS

= To 6&2

MINUTE ORDER o

Ea -

=

RE: Wade G. Lay

Vs CASE NO. CV-2021-224

State of Oklahoma

DATE: April 19, 2024

APPEARANCES:

PLAINTIFF’S ATTORNEY Jeffrey M. Byers/ Callie Heller

DEFENDANT’S ATTORNEY

Chuck Sullivan

OTHERS

TAPE NO. COURT REPORTER

COMES ON FOR: Jury Sounding

RULING: Stricken from May trial docket to be reset upon motion of either p

JUDGE OF THE DISTRICT CQURIL-—

I hereby certify on the day of , 20 JI mailed a true and correct copy

of the foregoing document to the following: ( )Plaintiff ( )Plaintiff’s Attorney

( )Defendant ( )Defendant’s Attorney Signed:

004

IN THE DISTRICT COURT OF PITTSBURG COUNTY. os,

STATE OF OKLAHOMA NS : a)

IN RE: WADE GREELEY LAY, ) Case No. CV-2021-224 | 7) ne -

Inmate No. 516263 -

ORDER

+

This matter comes on for trial this j YA say of fu Ay , 2024. Mr. Wade Greeley

Lay appears by and through counsel of record, Mr. Jeffrey Byers, Ms. Callie Heller, and Ms. Tricia

Russell, and his appearance is waived for good cause. The State appears through the Pittsburg

County District Attorney, Mr. Chuck Sullivan.

This Court has been advised that the parties have reached an agreement as to the evidence

to be presented in this matter regarding the question of Mr. Lay’s present competency and/or

sanity! to be executed. The parties are prepared to submit the matter to the Court based upon the

agreed evidence. The parties agree that the evidence establishes, by the preponderance or greater

weight of the evidence, that Mr. Wade Lay, DOC #516263, is currently incompetent to be

executed.

Being advised in the premises, this Court, therefore, enters the following findings of fact

and conclusions of law:

1. Mr. Lay was convicted by jury of, as relevant to this proceeding, First-Degree

Murder, in violation of 21 O.S.2001, § 701.7 (Count I). The jury found the existence of three (3)

aggravating circumstances, and Mr. Lay was formally sentenced to death on October 24, 2005, in

the District Court of Tulsa County, Oklahoma, Case No. CF-2004-2320. The Oklahoma Court of

1 Okla. Stat. tit. 22, § 1005 used the word “sanity” in the 1913 amendment that controls this

proceeding. Because current and governing law uses “competency” as the operative term, this

Order will refer to “sanity” and “competency” interchangeably.

1

005

"a

Oy

Criminal Appeals affirmed Mr. Lay’s convictions and sentences in Case No. D-2005-1081, on

February 12, 2008. Lay v. State, 2008 OK CR 7, 179 P.3d 615. The OCCA denied Mr. Lay’s

Application for Post-Conviction Relief in Case No. PCD-2006-1013, in an unpublished summary

opinion issued on September 26, 2008. Lay v. State, No. PCD-2006-1013 (Ok1. Cr. Sept. 26, 2008)

(unpublished).

2. The United States District Court for the Northern District of Oklahoma denied

habeas corpus relief to Mr. Lay on October 7, 2015, in Case No. 4:08-cv-617-TCK-PIC. Lay v.

Trammell, 2015 WL 5838853 (N.D. Okla. Oct. 6, 2015). The United States Court of Appeals for

the Tenth Circuit affirmed on June 26, 2017, in Case No. 15-5111. Lay v. Royal, 860 F.3d 1307

(10th Cir. 2017). The United States Supreme Court denied certiorari review on April 16, 2018, in

Case No. 17-7685. Lay v. Royal, 138 S. Ct. 1553 (2018).

3. On September 20, 2021, the Oklahoma Court of Criminal Appeals granted the

Oklahoma Attorney General’s request to set execution dates for several Oklahoma death row

inmates, setting Mr. Lay’s execution date for January 6, 2022. In the following weeks, Mr. Lay

requested by letter that then-Oklahoma State Penitentiary Warden Jim Farris initiate competency

proceedings per 22 O.S, § 1005. Warden Farris did not initiate proceedings.

4, On November 30, 2021, following an evidentiary hearing, this Court granted Mr.

Lay’s Petition for Writ of Mandamus and ordered Warden Farris to initiate the competency

proceedings herein.

5. On December 6, 2021, this Court entered an Agreed Order Staying Execution,

staying Mr. Lay’s execution pending adjudication of his competency to stand trial.

6. On March 15, 2022, Warden Farris notified Pittsburg County District Attorney

Chuck Sullivan that he had good reason to believe Mr. Lay had become insane, per the procedures

2,

006

of §§ 1005-1008. On the same day, District Attorney Sullivan petitioned this Court to set this

matter for jury trial.

7. On January 14, 2023, the Oklahoma Court of Criminal Appeals granted the

Oklahoma Attorney General’s request to reset execution dates for several Oklahoma death row

inmates, setting Mr. Lay’s execution date for June 6, 2024.

8. On March 8, 2023, this Court entered a Scheduling Order setting this matter for

jury trial on the Court’s May 2024 docket. This Order replaced a previous Scheduling Order that

had set the matter for the Court’s May 2023 jury docket.

9. Mr. Lay was competent when tried. Lay v. Royal, 860 F.3d 1307, 1314-15 (10th

Cir. 2017).

10. In the course of federal habeas corpus proceedings, the federal district court in

March 2011 ordered the Federal Bureau of Prisons to examine Mr. Lay. See Order Granting

Evidentiary Hr’g and Ordering Evaluation at 3, Lay v. Workman, 4:08-cv-617-TCK-PJC (N.D.

Okla. Mar. 8, 2011) (Doc. No. 50).

11. Board-certified clinical psychologist Dr. Richart DeMier, Ph.D., ABPP, then in the

employ of the Federal Bureau of Prisons Medical Center for Federal Prisoners, evaluated Mr. Lay

at the Medical Center pursuant to the federal court’s order. He evaluated Mr. Lay between May 19

and June 20, 2011. Dr. DeMier issued a report on June 30, 2011, diagnosing Mr. Lay with

schizophrenia, paranoid type, and finding that Mr. Lay was not competent to proceed in federal

habeas. Mr. Lay’s federal habeas proceedings nonetheless continued following an intervening

change in United States Supreme Court law. Dr. DeMier’s 2011 report was filed with this Court

in support of Mr. Lay’s Petition for Writ of Mandamus following the federal district court’s

October 14, 2021, order unsealing the report.

007

12. Dr. DeMier, having retired from federal service and entered private practice,

evaluated Mr. Lay at defense counsel’s request on September 21, 2021. He issued a report on

October 8, 2021, filed with this Court in support of Mr. Lay’s Petition for Writ of Mandamus,

concluding that Mr. Lay meets the diagnostic criteria for schizophrenia and finding Mr. Lay

incompetent for execution. Dr. DeMier concluded that Mr. Lay “lacks a rational understanding of

the reason Oklahoma seeks his execution.”

13. By agreement and without objection, Dr. DeMier’s report of October 8, 2021, is

admitted into evidence as Court’s Exhibit 1. The parties stipulate that Dr. DeMier would testify in

conformity with his written report from 2021, and that the same may be considered as evidence of

Mr. Lay’s present incompetency to be executed in this proceeding.

14. Most recently, Mr. Lay was evaluated by Dr. Scott Orth, Psy.D., a licensed

psychologist, who is employed by the Oklahoma Department of Mental Health and Substance

Abuse Services as the Director of Forensic Psychology at the Oklahoma Forensic Center in Vinita,

Oklahoma. Dr. Orth’s evaluation was conducted pursuant to this Court’s Agreed Order for

Competency Evaluation, which was entered January 9, 2024. The purpose of the evaluation was

to obtain a current opinion as to Mr. Lay’s competence to be executed. Dr. Orth conducted the

evaluation at the Oklahoma Forensic Center on February 1, 2024, and he prepared a written report

of his evaluation, which is dated February 22, 2024. In summary, Dr. Orth found that Mr. Lay’s

current mental state renders him presently incompetent to be executed. Dr. Orth, like Dr. DeMier,

concluded that Mr. Lay does not currently “have a rational understanding as to the reason for his

execution, 1.e., that he was convicted of murder.”

15. By agreement and without objection, Dr. Orth’s report of February 22, 2024, is

admitted into evidence as Court’s Exhibit 2. The parties stipulate that Dr. Orth would testify in

| 008

conformity with his written report and that the same may be considered as evidence of Mr. Lay’s

current incompetence to be executed.

16. The available evidence demonstrates, by,a preponderance or greater weight of the

evidence, that Mr. Lay is currently incompetent to be executed according to the governing legal

standards of Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti vy. Quarterman, 551 U.S. 930

(2007).

17. Oklahoma law, the Eighth Amendment to the United States Constitution, and the Due

Process clause of the Fourteenth Amendment to the United States Constitution forbid the execution

of incompetent/insane persons.

18. Pursuant to the foregoing constitutional and statutory provisions, and given Mr.

Lay’s present state of incompetence, the Court finds that Mr. Lay may not be executed at this time.

19. By statute, having found Mr. Lay presently incompetent to be executed, this Court

is required to “order the Department of Mental Health and Substance Abuse Services to provide,

where the defendant is currently incarcerated, treatment, therapy or training which is calculated to

allow the defendant to be restored to his or her sanity such that the defendant is able (1) to have a

rational understanding as to why he or she is being exequted and (2) to have a rational

understanding that he or she is to be executed and that execution is imminent.” 22 O.8.2021,

§ 1007. Section 1007 permits the Department of Mental Health and Substance Abuse Services to

designate another entity with qualified personnel to provide restoration services on behalf of the

Department. /d. |

20. ‘The statutes that control this proceeding were repealed on November 1, 2022, and

replaced by a statute that requires any inmate found presently incompetent to be executed to be

“reexamined after a reasonable period, not to exceed four (4) months, by a qualified forensic

009

examiner or examiners as necessary to determine whether the person remains mentally

incompetent to be executed.” 22 O.S.Supp.2022, § 1005.1(L). The Court finds it unnecessary to

determine at this time whether, after entering this finding :of present incompetence, future

proceedings in Mr. Lay’s case will be controlled by the now-repealed provisions of §§ 1005-1008

or by § 1005.1. Under either statutory scheme, it is plain that the Legislature intends for efforts to

be made to restore an inmate’s competence to be executed and for that process to be monitored for

a resumption of competence.

21. This Court therefore finds that the Oklahoma Department of Mental Health and

Substance Abuse Services must coordinate with the Oklahoma Department of Corrections (and, if

the Department of Mental Health and Substance Abuse Services so wishes, another entity with

personnel qualified to provide restoration services) in order to formulate a plan of treatment

designed to restore Mr. Lay to competence.

22. This Court further finds that this Court should. be provided, within three months

from the date of entry of this order, with a detailed copy of the restoration plan and detailed

information regarding Mr. Lay’s progress, if any.

23. To ensure the treatment and status of Mr. Lay’s return to competency, the treating

entity shall provide periodic reports to this Court every thirty (30) days setting forth the treatment

provided and any progress in the restoration of competency.

24, Finally, Mr. Lay’s competence shall be reevaluated, and a report indicating whether

Mr. Lay has regained competence shall be submitted to this Court, no later than six months after a

copy of the restoration plan is provided to this Court.

THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that upon the

evidence submitted by agreement of the parties and for good cause shown, Wade Greeley Lay,

010

DOC #516263, is deemed presently insane and/or incompetent to be executed according to the

governing legal standards in Ford v. Wainwright, 477 U.S. 399 (1986), and Panetti v.

Quarterman, 551 U.S. 930 (2007). Mr. Lay may not be executed while in this present state of

|

incompetence. |

This Court orders the State to provide a copy of this Order to the Oklahoma Court of

Criminal Appeals within three business days of its entry.

This Court further orders the Oklahoma Department |of Mental Health and Substance

Abuse Services to immediately coordinate with the Oklahoma Depariment of Corrections (and,

if the Department of Mental Health and Substance Abuse Services so wishes, another entity with

personnel qualified to provide restoration services) in order: to formulate a plan of treatment

designed to restore Mr, Lay to competence. Once a plan is devised, the Oklahoma Department of

Mental Health and Substance Abuse Services (or the entity designated by the Department) and

the Oklahoma Department of Corrections are ordered to implement the plan, monitor Mr. Lay’s

competence, and make adjustments to the plan as needed.

This Court further orders the Oklahoma Department, of Mental Health and Substance

Abuse Services to provide, within three months from the date of entry of this order, a detailed

copy of the restoration plan and detailed information regarding Mr. Lay’s progress, if any. This

Court will issue a further order after consideration of this information.

This Court further orders that the treating entity shall provide periodic reports to this Court

every thirty (30) days setting forth the treatment provided and any progress in the restoration of

competency. :

Finally, Mr. Lay’s competence to be executed shall! be reevaluated by the Oklahoma

Department of Mental Health and Substance Abuse Services, and a report indicating whether Mr.

O11

Lay has regained competence shall be submitted to this Court, no later than six months after a

copy of the restoration plan is provided to this Court.

— | x

“DISTRICT JUDGE

— 012.

Pe te Cs etn a i Metal rt he a

Appfo. ed

klahoma City, Oklahoma 73T02

405-609-5930 (Telephone)

405-609-5932 (Facsimile)

Jeff_Byers@fd.org

Calhe Heller. Texas Bar #24101897 (appearing Pro Hac Vice)

215 Dean A. McGee Avenue Suite 707

Oklahoma City, Oklahoma 73102

405-609-5975 (Telephone)

405-609-5976 (Facsimile)

Callie Heller a tory

Trivia Russell, Arkansas Bar #2020232 (appearing Pro Hae Vice)

215 Dean A. McGee Avenue Suite 707

Oklahoma City, Oklahoma 73102

405-609-5975 (Telephone)

405-609-5976 (Facsimile)

Tricia_Russelli@fd.org

Pittsburg County District Attorney

115 E. Cari Albert Pkwy.

McAlester, Oklahoma 74501

918-423-1424 (Telephone)

918-423-8575 (Fascimile)

Chuck. sullivan. dae. spate ok.us

Me Einar Le

Steve KunsvwenldrOkfahoma Bar #13398

Tulsa County DistNe Adore

S008. Denver Ave., #900

Tulsa, Oklahoma 74103

918-596-4805 (Telephone)

stevekunzweiler@tulsacounty org

013

“fy

v4

Toft fer Crabb, Oklahoma Bar #20546

ssistant Attomey General

313 N.E. 21st Street

Oklahoma City, OK 73105

405-521-3921 (Telephone)

405-522-4534 (Fascimile)

Jennifer.crabb@oag.ok.gov

10

014