dissenting.
I fully agree with my Brother White that a criminal defendant has no power to agree to be executed under an unconstitutional statute. I believe that the Eighth Amendment not only protects the right of individuals not to be victims of cruel and unusual punishment, but that it also expresses a fundamental interest of society in ensuring that state authority is not used to administer barbaric punishments. Irrespective of this, however, I cannot agree with the view expressed by The Chief Justice that Gilmore has competently, knowingly, and intelligently decided to let himself be killed. Less than five months have passed since the commission of the crime; just over two months have elapsed since sentence was imposed. That is hardly sufficient time for mature consideration of the question, nor does Gilmore’s erratic behavior — from his suicide attempt to his state habeas petition — evidence such deliberation. No adversary hearing has been held to examine the experts,1 all employed by the State of Utah, who have pronounced Gilmore sane.2 The decision of the Utah Supreme Court, finding a valid waiver can be given little weight. In the transcripts that the court prepared for us, it omitted a portion of its proceedings as having “no pertinency” to the issue of Gilmore’s “having voluntarily and intelligently waived his right to appeal.” That “irrelevant” portion in*1020volved a discussion by Gilmore’s trial counsel of his opinion of Gilmore’s competence and the constitutionality of the Utah statute. It is appalling that any court could consider these questions irrelevant to that determination. It is equally shocking that the Utah court, in a matter of such importance, failed even to have a court reporter present to transcribe the proceeding, instead relying on recordings made by dictating machines which have produced a partly unintelligible record. These inexplicable actions by a court charged with life or death responsibility underscore the failure of the State to determine adequately the validity of Gilmore’s purported waiver and the propriety of imposing capital punishment.
If Gilmore’s own lawyers refused to question his competence, the court could certainly ask other counsel acting as amicus curiae to present that side of the issue.
As The Chief Justice notes, the opinion of the Prison Psychiatrist, the only doctor who has considered Gilmore’s competency since the waiver decision was publicly announced, was based on a review of Gilmore’s medical records and a one-hour interview.