2007 ORS § 137.463¹
Death warrant hearing
  • death warrant

(1) When a sentence of death is pronounced, the clerk of the court shall deliver a copy of the judgment of conviction and sentence of death to the sheriff of the county. The sheriff shall deliver the defendant within 20 days from the date the judgment is entered to the correctional institution designated by the Director of the Department of Corrections pending the determination of the automatic and direct review by the Supreme Court under ORS 138.012 (Sentence of death).

(2) If the Supreme Court affirms the sentence of death, a death warrant hearing shall take place in the court in which the judgment was rendered within 30 days after the effective date of the appellate judgment or, upon motion of the state, on a later date. The following apply to a death warrant hearing under this subsection:

(a) The defendant must be present; and

(b) The defendant may be represented by counsel. If the defendant was represented by appointed counsel on automatic and direct review, that counsel’s appointment continues for purposes of the death warrant hearing and any related matters. If that counsel is unavailable, the court shall appoint counsel pursuant to the procedure in ORS 135.050 (Eligibility for court-appointed counsel) and 135.055 (Compensation and expenses of appointed counsel).

(3)(a) If the defendant indicates the wish to waive the right to counsel for the purpose of the death warrant hearing, the court shall inquire of the defendant on the record to ensure that the waiver is competent, knowing and voluntary.

(b) If the court finds that the waiver is competent, knowing and voluntary, the court shall discharge counsel.

(c) If the court finds on the record that the waiver of the right to counsel granted by this section is not competent, knowing or voluntary, the court shall continue the appointment of counsel.

(d) Notwithstanding the fact that the court finds on the record that the defendant competently, knowingly and voluntarily waives the right to counsel, the court may continue the appointment of counsel as advisor only for the purposes of the death warrant hearing.

(4) At the death warrant hearing, the court:

(a) After appropriate inquiry, shall make findings on the record whether the defendant suffers from a mental condition that prevents the defendant from comprehending the reasons for the death sentence or its implication. The defendant has the burden of proving by a preponderance of the evidence that the defendant suffers from a mental condition that prevents the defendant from comprehending the reasons for the death sentence or its implication.

(b) Shall advise the defendant that the defendant is entitled to counsel in any post-conviction proceeding and that counsel will be appointed if the defendant is financially eligible for appointed counsel at state expense.

(c) Shall determine whether the defendant intends to pursue any challenges to the sentence or conviction. If the defendant states on the record that the defendant does not intend to challenge the sentence or conviction, the court after advising the defendant of the consequences shall make a finding on the record whether the defendant competently, knowingly and voluntarily waives the right to pursue:

(A) A petition for certiorari to the United States Supreme Court;

(B) Post-conviction relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title); and

(C) Federal habeas corpus review under 28 U.S.C. 2254.

(5) Following the death warrant hearing, a death warrant, signed by the trial judge of the court in which the judgment was rendered and attested by the clerk of that court, shall be drawn and delivered to the superintendent of the correctional institution designated by the Director of the Department of Corrections. The death warrant shall specify a day on which the sentence of death is to be executed and shall authorize and command the superintendent to execute the judgment of the court. The trial court shall specify the date of execution of the sentence, taking into consideration the needs of the Department of Corrections. The trial court shall specify a date not less than 90 days nor more than 120 days following the effective date of the appellate judgment.

(6)(a) Notwithstanding any other provision in this section, if the court finds that the defendant suffers from a mental condition that prevents the defendant from comprehending the reasons for the sentence of death or its implications, the court may not issue a death warrant until such time as the court, after appropriate inquiries, finds that the defendant is able to comprehend the reasons for the sentence of death and its implications.

(b)(A) If the court does not issue a death warrant because it finds that the defendant suffers from a mental condition that prevents the defendant from comprehending the reasons for the sentence of death or its implications, the court shall conduct subsequent hearings on the issue on motion of the district attorney or the defendant’s counsel or on the court’s own motion, upon a showing that there is substantial reason to believe that the defendant’s condition has changed.

(B) The court may hold a hearing under this paragraph no more frequently than once every six months.

(C) The state and the defendant may obtain an independent medical, psychiatric or psychological examination of the defendant in connection with a hearing under this paragraph.

(D) In a hearing under this paragraph, the defendant has the burden of proving by a preponderance of the evidence that the defendant continues to suffer from a mental condition that prevents the defendant from comprehending the reasons for the sentence of death or its implications.

(7) If for any reason a sentence of death is not executed on the date appointed in the death warrant, and the sentence of death remains in force and is not stayed under ORS 138.686 (Automatic stay of sentence of death for federal appeal and state post-conviction relief) or otherwise by a court of competent jurisdiction, the court that issued the initial death warrant, on motion of the state and without further hearing, shall issue a new death warrant specifying a new date on which the sentence is to be executed. The court shall specify a date for execution of the sentence, taking into consideration the needs of the Department of Corrections. The court shall specify a date not more than 20 days after the date on which the state’s motion was filed.

(8) No appeal may be taken from an order issued pursuant to this section. [1984 c.3 §5; 1999 c.1055 §2; 2001 c.962 §96]