Is the making of that decision prima fascia evidence of incompetence?
CHIEF PUBLIC DEFENDER GERARD SMYTH: No. Someone who is mentally competent does have a right to waive their appeals and volunteer to be executed, but there has to be a proper determination of whether or not they are, in fact, mentally competent before they can be executed. SEN. RORABACK: So what kind of showing would they make to satisfy that standard, and to whom should that showing be made? CHIEF PUBLIC DEFENDER GERARD SMYTH: Well, there has to be a full and fair and adversarial competency hearing, so that evidence on both sides of the question can be presented to the court and the court can make a reliable determination of their competency. The problem that exists in the Ross case up until now is that both sides, both the prosecution and the defense, were advocating for a finding that Michael Ross was mentally competent. It would sort of be like having a trial where the prosecutor and the defense counsel both get up and argue to the jury that the defendant is guilty, and you conceal
