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SALT LAKE CITY — A federal judge who already believes the appeal of death row inmate Ron Lafferty is taking too long has decided the case will proceed while the man's mental competency is evaluated.
The question before U.S. District Judge Dee Benson in a hearing Tuesday was whether Lafferty, 68, is even entitled to a mental competency review at this point.
Lafferty's attorneys are adamant that they need full understanding from their client so that he can provide insight and information pertinent to his appeal.
"The need to communicate with counsel is very important in this adversarial system," attorney Ken Murray said Tuesday.
But Benson said the competency issue, which has already stalled the case for more than a year, has already been addressed at the state level and will only further delay court proceedings. He pointed out that death penalty cases languish for an average of 17 years in the federal courts.
"This could go on forever," the judge said to Lafferty's attorney, Ken Murray. "If you can find and come up with different theories of his mental state ... nothing will ever get done. You wouldn't have to find him incompetent, you could swirl this around until the end of his lifetime. There has to be an end to this."
Murray said he wasn't trying to cause any delays, but merely feels "I have a duty because I don't feel he's competent."
Benson pointed out, though, that a competent client isn't necessarily a cooperative one.
"That's fine as long as we know he's not (cooperating) because of mental illness or disease," Murray said. "This is a serious, make or break decision in this case, because if we have to go forward ... we could miss some very critical issues."
Assistant attorney general Tom Brunker, who heads the capital appeals division, said Lafferty has no right to a competency hearing unless an "extreme malfunction" can be found in the proceedings at the state level — where Lafferty was twice tried and convicted.
He also questioned the timing of when the competency issue was presented — after a formal appeals petition, which was supposed to be complete had already been filed — and the fact that competency questions never came up before.
"There's never been anything in the records expressing concerns as to Mr. Lafferty's competency," Brunker said. "That didn't arise until 14 months after the presumptively complete response was filed."
He said it's not necessarily required that Lafferty be competent at this point in the process because the basic point of the federal petition is to review the state court conviction.
"The issue is whether the state court properly held him to be competent," Brunker said. "There can be a review of the records and competency to stand trial and that doesn't require Mr. Lafferty's input."
Benson brought up, however, that the U.S. Supreme Court has ruled that an incompetent person cannot be executed and it might be foolish to potentially wrap up an appeal and move a man closer to death who may be incompetent.
"Wouldn't that be quite the risk?" Benson said. "You're dealing with a guy on death row anyway."
Brunker said Benson called the attorneys back to the courthouse later in the afternoon and postponed determining whether Lafferty has a right to be competent pending the results of a competency evaluation.
Instead, Benson green-lighted a full competency evaluation, but determined that court proceedings that address the merits of some of Lafferty's appeal of his conviction and sentence can proceed.
"There'll be some movement on the claims that don't require Laffery's input at all," Brunker said.
Lafferty's attorneys filed a sealed motion requesting a competency determination for Lafferty in December of 2010. They argue that an evaluation by Xavier F. Amador shows preliminarily that Lafferty is not able to rationally communicate or assist his defense counsel, according to an order issued by Benson in July. The state disagrees with the finding, and believes Lafferty understands the legal process and shows that he is able to provide information necessary to litigate the case.
Amador, a Columbia University professor and psychologist whose resume includes the Unabomber and Elizabeth Smart cases, is scheduled to evaluate Lafferty, 68, again this week.
Claiming they were directed by God, Lafferty and brother Dan Lafferty slashed the throats of their sister-in-law Brenda Lafferty and her 15-month-old daughter, Erica, in 1984. Ron Lafferty was sentenced to death in 1985; Dan Lafferty to life in prison.
A federal appeals court overturned Ron Lafferty's conviction in 1991 because the wrong standard was used to determine his mental competency to stand trial. He underwent a competency evaluation in 1994, had another trial in 1996 and was again found guilty and sentenced to die. Lafferty chose execution by firing squad.
The Utah Supreme Court denied Lafferty's request for a new trial in 2007. The state's high court based its decision, in part, on the question of whether he was mentally competent in 1985. The justices concluded that given several mental evaluations, Lafferty was competent. The ruling essentially exhausted his state appeal options, and he then turned to the federal court in an effort to stop his execution.
E-mail: emorgan@desnews.com
