Rule R671-312. Commutation Hearings for Death Penalty Cases.

As in effect on August 1, 2009

Table of Contents

• R671-312-1. Applicability of Rules to Petitioners.
• R671-312-2. Commutation Procedures Applicable to Persons Sentenced to Death Before April 26, 1992.
• R671-312-3. Commutation Procedures Applicable to Persons Sentenced to Death After April 26, 1992.
• KEY
• Date of Enactment or Last Substantive Amendment
• Notice of Continuation
• Authorizing, Implemented, or Interpreted Law

R671-312-1. Applicability of Rules to Petitioners.

Procedures applicable to commutation petitions for any person sentenced to the death penalty prior to April 26, 1992, will be governed by Rule R671-312-2. Procedures applicable to commutation petitions for any person sentenced to the death penalty after April 26, 1992, will be governed by Rule R671-312-3.

R671-312-2. Commutation Procedures Applicable to Persons Sentenced to Death Before April 26, 1992.

(1) A person sentenced to death, or his counsel, may file a petition for commutation no later than seven days after the sentencing court has issued a judgment of death or a warrant of execution after completion of the person's appeal from his conviction. For purposes of this rule, "appeal" does not include any action for post-conviction relief or any other form of collateral attack.

(2) The commutation petition shall be signed by the person sentenced to death and filed at the offices of the Board of Pardons and Parole "Board" no later than seven days after the sentencing court signs a warrant setting an execution date. The petitioner or his counsel shall mail a copy of the petition, by United States Mail, postage prepaid, to the Attorney General or his designee. Additional copies of the petition may be served in any manner calculated to accomplish actual notice to the State, and may include hand delivery, facsimile transmission, electronic mail, or other electronic transmission.

(3) If the execution date is stayed by any court between the time of the sentencing court's issuance of the execution judgment or warrant and the beginning of the commutation hearing, the commutation proceeding shall terminate. If the execution date is stayed during the commutation hearing, the hearing may continue and the Board may render its decision in accordance with this rule.

(4) The petition shall include:

(a) the petitioner's name and the name and address of any attorney who is representing the petitioner in the commutation proceeding;

(b) a statement of the reasons or grounds which petitioner believes support the commutation of the death sentence;

(c) copies of all written evidence upon which petitioner intends to rely at the hearing along with the names of all witnesses petitioner intends to call and a summary of their anticipated testimony.

(5) If the petitioner previously received a commutation hearing, the petition shall include a statement reciting what, if any, new significant and previously unavailable information exists which supports commutation and the reasons this information requires a new hearing.

(6) The Board may temporarily stay an execution to fully hear the petition for commutation.

(7) Within seven days of receiving the petition, the State of Utah, by and through the Attorney General or his designee, shall file a response to the petition with the Board. The State shall file with the Board and mail, via United States mail, postage prepaid, or hand deliver to the petitioner and his counsel, if represented, the State's response, along with copies of all written evidence, and the names of the witnesses, and a summary of the anticipated testimony upon which the State intends to rely on to rebut petitioner's claim that the sentence of death should be commuted. The Board may request either the petitioner or the State to provide additional information.

(8) Within three business days of receiving the State's response, the Board will hold a pre-hearing conference to identify and set the witnesses to be called, clarify the issues to be addressed, and take any other action it considers necessary and appropriate to control and direct the proceedings.

(9) If not otherwise called as a witness, a victim representative, as defined by Administrative Rule R671-203-1, shall be afforded the opportunity to attend the commutation hearing, and to present testimony regarding the commutation of the death sentence, in accordance with, and subject to the provisions of Administrative Rule R671-203-4(A-C, and F).

(10) The commutation hearing is not adversarial and neither side is allowed to cross-examine the other party's witnesses. However, the Board may ask questions freely of any witness, the petitioner, the petitioner's attorney, or the State's attorney. The role of the State's attorney is limited to rebutting the petitioner's claim and otherwise assisting the Board in determining all facts relevant to the inquiry. The Rules of Evidence do not apply to the commutation hearing.

(11) In conducting the commutation hearing:

(a) The Board will place all witnesses under oath and may impose a time limit on each side for presenting its case.

(b) The Board will record the commutation hearing in accordance with Utah Code Ann. Subsection 77-27- 8(2).

(c) Administrative Rule R671-302 "News Media and Public Access to Hearings" will govern media and public access to the hearing.

(d) The Board may take any action it considers necessary and appropriate to maintain the order, decorum, and dignity of the hearing.

(12) The Board will reconvene in open session to announce and distribute its written decision.

R671-312-3. Commutation Procedures Applicable to Persons Sentenced to Death After April 26, 1992.

(1) A person sentenced to death, or his counsel, may file a petition for commutation anytime after the sentencing court has issued a judgment of death or a warrant of execution after completion of the person's appeal from his conviction. For purposes of this rule, "appeal" does not include any action for post-conviction relief or any other form of collateral attack.

(2) The commutation petition shall be signed by the person sentenced to death and filed at the offices of the Board no later than seven days after the sentencing court signs a warrant setting an execution date. The petitioner or his counsel shall mail a copy of the petition, by United States Mail, postage prepaid, to the Attorney General or his designee. Additional copies of the petition may be served in any manner calculated to accomplish actual notice to the State, and may include hand delivery, facsimile transmission, electronic mail or electronic transmission.

(3) If the execution date is stayed by any court between the time of the sentencing court's issuance of the execution judgment or warrant and the beginning of the commutation hearing, the commutation proceeding may terminate. If the execution date is stayed during the commutation hearing, the hearing will continue and the Board may render its decision in accordance with this rule.

(4) The petition shall include:

(a) the petitioner's name and name and address of any attorney who is representing the petitioner in the commutation proceeding;

(b) a statement of the reasons or grounds which petitioner believes support the commutation of the death sentence;

(c) copies of all written evidence upon which petitioner intends to rely at the hearing along with the names of all witnesses petitioner intends to call and a summary of their anticipated testimony.

(d) a statement specifying whether any of the reasons stated as reasons or grounds for commutation have been reviewed by a court or courts of competent jurisdiction;

(e) a statement, if new information is alleged, explaining why the reasons the information is considered new, why the new information was not or could not have been reviewed during the judicial process, and why the new information is not still subject to judicial review;

(f) a statement, if legal or constitutional reasons for commutation are claimed, setting forth the reasons that the provision of Utah Code Ann. Section 77-27-5.5(6) does not prohibit the Board from considering the purported legal or constitutional issues.

(5) If petitioner previously received a commutation hearing, the petition shall set forth what, if any, new significant and previously unavailable information exists which supports commutation and the reasons this information requires a new hearing.

(6) Within seven days of receiving the petition, the State of Utah, by and through the Attorney General or his designee shall file a response with the Board. The State's response shall be mailed, via United States mail, postage prepaid, or hand delivered to the petitioner and his counsel, if represented. The state's response to the petition shall include copies of all written evidence, and the names of the witnesses, and a summary of the anticipated testimony upon which the State intends to rely to either challenge petitioner's right to commutation hearing or to rebut petitioner's claim that the sentence of death should be commuted. The Board may request either the petitioner or the State to provide additional information.

(7) If the Board believes that it cannot consider the claims pursuant to Utah Code Ann. Section 77- 27-5.5, it shall deny the petition.

(8) If the Board determines the petition does not present a substantial issue for commutation, it shall deny the petition.

(9) If the Board determines the petition presents a substantial issue for commutation, which has not been reviewed in the judicial process, a commutation hearing shall be scheduled as soon as reasonably possible.

(10) The Board may temporarily stay an execution to fully hear the petition for commutation.

(11) Within three business days of determining the petition presents a substantial issue for commutation which has not been reviewed in the judicial process, the Board shall hold a pre-hearing conference to identify and set the witnesses to be called, clarify the issues to be addressed, and take any other action it considers necessary and appropriate to control and direct the proceedings.

(12) If not otherwise called as a witness, a victim representative, as defined by Administrative Rule R671-203-1, shall be afforded the opportunity to attend the commutation hearing, and to present testimony regarding the commutation of the death sentence, in accordance with, and subject to the provisions of Administrative Rule R671-203-4(A-C, and F).

(13) The commutation hearing is not adversarial and neither side is allowed to cross-examine the other party's witnesses. However, the Board may ask questions freely of any witness, the petitioner, the petitioner's attorney, and the State's attorney. The role of the State's attorney is limited to challenge the petitioner's right to a commutation hearing and rebutting petitioner's claim and otherwise assisting the Board in determining all facts relevant to the inquiry. The Rules of Evidence do not apply to the commutation hearing.

(14) In conducting the commutation hearing:

(a) The Board will place all witnesses under oath and may impose a time limit on each side for presenting its case.

(b) The Board will record the commutation hearing in accordance with Utah Code Ann. Subsection 77-27- 8(2).

(c) Administrative Rule R671-302 "News Media and Public Access to Hearings" will govern media and public access to the hearing.

(d) The Board may take any action it considers necessary and appropriate to maintain the order, decorum, and dignity of the hearing.

(15) The Board will reconvene in open session to announce and distribute its written decision.

KEY

capital punishment

Date of Enactment or Last Substantive Amendment

February 25, 2009

Notice of Continuation

August 14, 2008

Authorizing, Implemented, or Interpreted Law

77-19-7; Art VII, Sec 12