Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex 

rel. Dep't Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 

(1983). In deciding whether to exercise that discretion, we generally 

consider "whether judicial economy and sound judicial administration 

militate for or against issuing the writ, including whether an important 

issue of law needs clarification and public policy is served by this court's 

invocation of its original jurisdiction." State v. Eighth Judicial Dist. Court 

(Armstrong), 127 Nev. , 267 P.3d 777, 779-80 (2011) (quotations 

and citations omitted). 

We have entertained writ petitions to address discrete legal 

issues related to the statutory process that governs competency 

evaluations. See, e.g., Sims v. Eighth Judicial Dist. Court, 125 Nev. 126, 

206 P.3d 980 (2009). Unlike those petitions, the petition here challenges 

the district court's exercise of discretion. Melchor-Gloria v. State, 99 Nev. 

174, 180, 660 P.2d 109, 113 (1983). Based on the information provided to 

the district court, we cannot conclude that the district court manifestly 

abused or arbitrarily and capriciously exercised its discretion. Armstrong, 

127 Nev. at ,267 P.3d at 780. 

The alleged doubts about Desai's competency to stand trial 

primarily involve amnesia and aphasia resulting from several strokes. 

The amnesia was addressed as part of a prior competency proceeding 

under NRS 178.415 and evaluations at Lake's Crossing. The independent 

medical evaluation (IME) report prepared more recently confirms the prior 

findings that Desai embellished the effects of his prior strokes, 

particularly regarding the profound memory loss that he claimed. Even 

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assuming that Desai suffers from the level of amnesia that the IME report 

indicated is possible based on his prior strokes,' the amnesia alone would 

not be sufficient to require further competency proceedings or a finding at 

this point that he is not competent to stand trial. "[C]ourts have 

uniformly held that amnesia regarding the alleged crime does not 

constitute incompetence per se but may establish a basis for a finding of 

incompetence in a particular case." 2 United States v. No Runner, 590 F.3d 

962, 965 n.2 (9th Cir. 2009); see also Palmer, 31 P.3d at 866-67. Where the 

issue of competency turns on amnesia, there are a number of questions 

that are relevant to the issue and "the answers to these questions may not 

be known prior to trial; it may be the trial itself that illuminates them." 3 

No Runner, 590 P.3d at 965. For that reason, we cannot conclude that the 

'According to the IME report, the memory function should not have 

been further affected by the more recent series of small strokes in 

February 2013. 

2We recognize that there is a split of authority as to whether 

amnesia is even relevant to a competency determination. People v. 

Palmer, 31 P.3d 863, 867-68 (Colo. 2001) (discussing the split), superseded 

by statute on other grounds as recognized in State ex rel. W.P., 295 P.3d 

514 (Colo. 2013). Because we have not addressed the issue previously and 

a final determination of that question is not necessary to resolve this 

petition, we assume for purposes of our decision today that this court 

would follow what appears to be the majority approach. 

3The order entered by the Honorable Kathleen Delaney in January 

2012 is consistent with the authority cited above, observing that 

"[m]emory loss itself, even if true, is not a bar to prosecution of an 

otherwise competent Defendant" and concluding that "there is no 

indication in the present record that Defendant and his counsel would be 

unable to reconstruct the events of the alleged crimes for which he is 

accused or to raise any possible defenses to the evidence against him." 

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district court manifestly abused or arbitrarily and capriciously exercised 

its discretion when it declined the pretrial request to order further 

competency proceedings under NRS 178.415 based on Desai's purported 

amnesia. 

The record before the district court as to the extent of Desai's 

current aphasia as a result of the series of small strokes in February 2013 

does not include substantial evidence that Desai is incompetent to stand 

trial. See Melchor-Gloria, 99 Nev. at 180, 660 P.2d at 113 ("A formal 

competency hearing is constitutionally compelled any time there is 

'substantial evidence' that the defendant may be mentally incompetent to 

stand trial. In this context, evidence is 'substantial' if it raises a 

reasonable doubt about the defendant's competency to stand trial." 

(quotations and citations omitted)). Defense counsel reported his 

observations as to Desai's difficulties communicating verbally and in 

writing, but as the district court observed, counsel had reported the same 

observations before the February strokes, at a time when various 

evaluators and the IME report opine that Desai was embellishing his 

deficiencies. The recent IME report does not opine on the extent of 

aphasia that could be expected based on the nature and location of the 

series of strokes in February. Although it may have been reasonable to 

grant defense counsel's request for an evidentiary hearing to clarify the 

opinions in the IME report as to the extent of Desai's current aphasia, we 

are not convinced that the district court's contrary decision amounts to a 

manifest abuse or arbitrary and capricious exercise of discretion; the judge 

did not rely on a clearly erroneous interpretation or application of the law, 

did not ignore the applicable law, considered all of the information 

presented to it, and discussed various accommodations to address Desai's 

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aphasia. 4 See Armstrong, 127 Nev. at , 267 P.3d at 780 (defining 

manifest abuse of discretion as "[a] clearly erroneous interpretation of the 

law or a clearly erroneous application of a law or rule" and an arbitrary or 

capricious exercise of discretion "one founded on prejudice or preference 

rather than on reason or contrary to the evidence or established rules of 

law" (quotations and citations omitted)). 

The district court's pretrial decision does not conclusively 

determine the question of competency. Competency to stand trial is fluid 

and therefore may be raised by the defendant or the court at any time. 

See NRS 178.405(1); Fergusen v. State, 124 Nev. 795, 802-03, 192 P.3d 

712, 717-18 (2008). For example, as the answers to the questions that 

inform whether amnesia renders a defendant incompetent are illuminated 

during trial, the defendant may raise the issue during or following trial or 

the trial court may raise the issue sua sponte. Similarly, if the 

proceedings reveal that the extent of any aphasia cannot be accommodated 

and, as a result, there are doubts as to Desai's current competency, the 

defendant may raise the issue during or following trial or the trial court 

may raise the issue sua sponte. But we conclude that at this point, Desai 

4We cannot determine in this proceeding whether the 

accommodations will be sufficient. That issue was not addressed in 

significant detail below and it seems likely that the trial itself will 

illuminate the answer to that question. 

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has not demonstrated that our intervention is warranted. Accordingly, we 

ORDER the petition DENIED. 5 

Parraguirre 

CHERRY, J., dissenting in part: 

I agree with my colleagues as to the district court's handling of 

the competency issue based on amnesia, but I must depart with them as to 

the district court's handling of the competency issue based on aphasia. In 

my opinion, the district court manifestly abused its discretion in rejecting 

defense counsel's request for an evidentiary hearing to further address the 

IME report. 

The IME report indicates that "aphasia" is "the term used to 

describe a neurologic disturbance of speech, and encompasses both the 

ability to produce and understand speech." The doctor who prepared the 

report had not examined Desai and therefore was limited in his ability to 

give an opinion as to whether Desai's current described aphasia is real or 

embellished, but the doctor did observe that Desai's current described 

aphasia "is possible" and that he would expect the symptoms to improve 

over time with an "excellent chance" at "near complete recovery." The 

5Given our resolution of the petition, we deny the motion for a stay 

as moot. 

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' 

doctor indicated that recovery normally occurs within 3 to 9 months but 

may take up to 18 months. At the time of the hearing, it had been less 

than 2 months since the most recent series of stroke. Although the IME 

doctor could not opine as to the real extent of Desai's current aphasia, 

defense counsel reported that Desai had difficulty communicating with 

him and expressed concern with Desai's ability to speak, to understand 

speech, and to communicate through writing. I acknowledge the 

significant concerns with the possibility that Desai is embellishing his 

symptoms, but there has been an undisputed change in circumstances 

since the prior findings of embellishment—the recent series of strokes. 

The accommodations offered by the district court may address Desai's 

current aphasia, but they may not if his current aphasia "involves a loss of 

or defect in comprehension of written or spoken language," 30 Am. Jur. 

Proof of Facts 2d 341, § 1(1982), or precludes him from communicating in 

writing to such a degree that he cannot aid and assist "counsel in the 

defense . . . with a reasonable degree of rational understanding," NRS 

178.400(2). We simply do not know. Presented with all of these 

circumstances, it not only would have been reasonable for the district 

court to grant defense counsel's request for an evidentiary hearing, in my 

opinion it was a manifest abuse of discretion not to do so. Cf. Olivares v. 

State, 124 Nev. 1142, 1149, 195 P.3d 864, 869 (2008) ("when doubts have 

been raised as to a defendant's competency to stand trial, the district court 

has an obligation to hold a hearing to fully consider those doubts and to 

determine whether further competency proceedings under NRS 178.415 

are warranted"). An evidentiary hearing likely would not have 

significantly delayed the trial, if at all, and it may have resolved some of 

the potential ongoing competency issues that may now arise throughout 

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the trial. For these reasons, I would grant the petition and the motion for 

a stay. 

cc: Hon. Valerie Adair, District Judge 

Wright Stanish & Winckler 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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