Section 15-16-22 Duty of Judge to Order Examination of Defendant in Capital Cases; Observation and Examination of Defendant by Commission on Lunacy; Report by Commission; Order of Clerk of Court; Expenses of Removal of Defendant.

(a) Whenever it shall be made known to the presiding judge of a court by which an indictment has been returned against a defendant for a capital offense, that there is reasonable ground to believe that such defendant may presently lack the capacity to proceed or continue to trial, as defined in Section 22-52-30, or whenever said judge receives notice that the defense of said defendant may proceed on the basis of mental disease or defect as a defense to criminal responsibility; it shall be the duty of the presiding judge to forthwith order that such defendant be committed to the Department of Mental Health and Mental Retardation for examination by one or more mental health professionals appointed by the Commissioner of the Department of Mental Health and Mental Retardation. The commissioner shall place the defendant under the observation and examination of one or more mental health professionals, each of whom is either a licensed psychologist holding a Psy. D. or Ph.D degree or a licensed physician who specializes in psychiatry. The assigned mental health professional(s) shall examine the defendant with respect to determining the presence of any mental disease or defect which, if determined to be present, would affect the capacity of the defendant to proceed or continue to trial or which would affect the defendant’s criminal responsibility at the time of the commission of the crime. (b) Such defendant shall be subject to the observation of and examination by the mental health professional(s) appointed by the commissioner for such length of time as may be necessary to determine the mental condition of the defendant so far as it affects his capacity to proceed or continue to trial or his criminal responsibility. (c) As soon as the assigned mental health professional(s) has completed the examination of the defendant, said mental health professional(s) shall make a full written report thereof to the clerk of the court in which the indictment against said defendant is pending, which report shall be placed on file and be accessible to the court, to the district attorney and to the counsel for the defendant. (d) It shall be the duty of the clerk of said court upon receipt of said report to issue an order to the sheriff of the county directing that such defendant be remanded and removed to jail and that the criminal proceedings against him be resumed or he be otherwise legally discharged. (e) The expense of removing such defendant to and from the hospitals and of maintaining him while there confined shall be paid in the same manner as provided by law in the case of persons adjudged to be of unsound mind following inquisition in the probate court.