State v. Hyde

¶1Writ granted. Given the significant and apparently irreconcilable discrepancies in the testimony of Drs. Ritter and Medina that relator was retarded and suffered from Organic Personality Syndrome, and the opinion of Dr. Franklin, based on relator’s medical records, that relator was not retarded and had not suffered organic brain damage causing any Axis I syndrome, the district court erred in denying Dr. Franklin access to relator at the hearing for purposes of conducting his own neurological examination. The district court is ordered to reopen the hearing and provide Dr. Franklin with the opportunity to examine relator and report to the court on his findings. The court may consider appointing a fourth medical expert to resolve any remaining conflicts in the diagnosis. The court is to rule, in light of all of the testimony, whether the state has presented clear and convincing evidence under Foucha v. Louisiana, 504 U.S. -, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1990).