A.Disciplinary Board (High Court Hearing). Before the hearing can begin, an accused offender must acknowledge on the record that he is familiar with his rights as follows:
1.the right to present evidence and witnesses in his behalf and to request cross-examination of the accuser provided such request is relevant, not repetitious, not unduly burdensome to the institution and/or not unduly hazardous to staff or offender safety. (The board has the option of stipulating expected testimony from witnesses. In such cases, the record of the hearing shall contain a statement indicating the nature of the stipulated testimony. The board should assign proper weight to such testimony as though the witness had actually appeared.) The accusing employee must be present and testify when the report is based solely on information from confidential informants, if such a motion is raised.
2.the right to counsel substitute for all alleged violations or the right to retained counsel, if the alleged violation is one for which the offender could also be charged in a criminal court, e.g. possession of illegal drugs, rape or aggravated battery, etc.
3.the right to not be compelled to incriminate himself.
4.the right to a written summary of the evidence and reasons for the judgment, including reasons for the sanction imposed, when the accused pled not guilty and was found guilty. (This will usually appear on the finalized report.) The convicted offender will automatically be given or sent a written summary.
5.the right to appeal consistent with the appeal procedure. (Refer to the Section on “Appeals”.)
6.the right to a hearing within 72 hours of placement in administrative segregation. Official holidays, weekends, genuine emergencies and good faith efforts by the administration to provide a timely hearing are the only exceptions. When it is not possible to provide a full hearing within 72 hours of placement in administrative segregation, the accused must be brought before the board, informed of the reasons for the delay and remanded back to administrative segregation or released to his quarters after a date for a full hearing has been set.
7.the right to an unbiased hearing. Any chairman or member directly involved in the incident, who is biased for or against the accused or who is in a therapeutic relationship with the offender that would be jeopardized by the therapist’s presence on the disciplinary board, cannot hear the case unless the accused waives recusal. (Performance of a routine administrative duty does not necessarily constitute "direct involvement" or "bias.")
8.the right to be given a written copy of the disciplinary report at least 24 hours before the hearing begins which describes the contents of the charges against the offender (unless waived by him in writing.)
B.Conduct of the Hearing (High Court Hearing). All rights and procedural requirements must be followed unless waived by the accused. Disciplinary board hearings must be recorded in their entirety and the recordings preserved in accordance with the department's record retention policy for use in any subsequent judicial review or any other court proceedings. Hearings will generally be conducted as follows.
1.An offender who does not choose to be present may sign a waiver which shall be read into the record. A counsel substitute shall represent him. The same applies to a disruptive offender who refuses to cooperate or to allow orderly proceedings. If the offender refuses to sign a waiver, one shall be prepared and the refusal noted by two witnesses. The disciplinary chairman should also sign all waivers.
2.The accused enters his name and DOC number into the record as does his counsel or counsel substitute (if any) and confirms that he understands his rights. If the offender indicates he does not know or understand his rights, they must be explained to him. During the hearing, the accuser should only be present to testify. He should not be present for any other witness testimony and shall never be present during deliberations.
3.The chairman shall read the disciplinary report aloud to the accused and ask for a plea. Available pleas are not guilty or guilty. Should the accused attempt to enter an unavailable plea or refuse to enter a plea, the chairman will enter a not guilty plea for him and proceed with the hearing.
4.Preliminary motions, if any, by the defense should now be made. Such motions must be raised at the first opportunity or be considered waived and may include:
a.dismissal of the charge(s);
b.continuance; (offenders are not entitled to a continuance to secure counsel unless they are charged with a violation that is also a crime under state law. Only one continuance need be granted unless new information is produced.)
c.requests to face accuser and call witness, etc.;
d.a motion due to lack of 24-hour notice must be made at this time, including any challenge to the waiver of the 24-hour notice rule having not been made in writing;
e.request for investigation;
f.any other appropriate motions;
g.all motions must be made at the same time in the proceedings. Subsequent verbal motions will be denied as having been waived.
5.The board should rule on motions at the time the motion is made, unless expressly deferred to the actual hearing. Written reasons for each ruling should be made.
6.After entering his plea and motions, if any, the accused may present his defense. The board may ask questions of the accused, his witnesses and/or his accuser.
7.A summary of motions presented will be documented on the "Summary of Motions Presented During Disciplinary Hearing" form. (The form is available from institutional classification or security staff.)
8.During deliberations, everyone except the board and any official observers must leave the room, and the board will decide the case on the basis of the evidence presented at the hearing. Official observers must not take part in the hearing or the deliberations. The disciplinary record of the accused may be examined to discover a pattern of similar misbehavior or to determine if a pending suspended sanction exists. The disciplinary record may be used to determine the appropriate sanction(s) to be imposed.
9.Following the deliberations, the chairman will announce the verdict. If the verdict is guilty, the chairman will then announce the sanction(s). The board has full authority to suspend any sanction imposed for a period of up
Louisiana Register Vol. 34, No. 10 October 20, 2008