If the Board believes that it cannot consider the claims pursuant to Utah Code Ann

							R671. Pardons (Board of), Administration.
R671-312. Commutation Hearings for Death Penalty Cases.
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, and Implemented or Interpreted Law:    77-19-7; Art VII,
Sec 12