§567.1. Mental incompetence to proceed to execution

A. A person who is not competent to proceed to execution may not be executed.

B. A person is not competent to proceed to execution when a defendant presently lacks the competence to understand that he is to be executed, and the reason he is to suffer that penalty.

C. Any person sentenced to death may raise his mental incompetence to proceed to execution by filing in the sentencing court a petition verified by his affidavit, or, if represented, by that of his counsel. A person acting as the petitioner's next friend, or the secretary of the Department of Public Safety and Corrections, may also file the petition. The petition shall contain all of the following:

(1) The name of the person in custody.

(2) The name of the custodian.

(3) The docket number in which he was convicted and the date upon which he was sentenced.

(4) A statement that clearly sets forth the alleged facts in support of the assertion that the defendant is incompetent.

(5) Any affidavits, records, or other evidence supporting the above statement or a statement why such is not available.

(6) Identification of any previous proceedings in which defendant challenged his competency.

D. If, based upon the petition, the court has reasonable grounds to doubt the defendant's mental competence to proceed to execution, it shall order a competency examination of the defendant. Prior to ordering any such competency examination, the court shall appoint counsel to represent the defendant if he is not already represented.

E. Within seven days after a competency examination is ordered, the court shall appoint a competency commission to examine and report upon the mental condition of the defendant. The competency commission shall consist of at least two and not more than three members who are licensed to practice medicine in Louisiana, who have been in the actual practice of medicine for not less than three consecutive years immediately preceding the appointment, and who are qualified by training or experience in forensic evaluations. The court may appoint, in lieu of one physician, a clinical psychologist who is licensed to practice psychology in Louisiana, who has been engaged in the practice of clinical or counseling psychology for not less than three consecutive years immediately preceding the appointment, and who is qualified by training or experience in forensic evaluations. Every competency commission shall have at least one psychiatrist as a member of the commission, unless one is not reasonably available, in which case, the commission shall have at least one clinical psychologist as a member of the commission. No more than one member of the competency commission shall be the coroner or any of his deputies.

F. The members of the competency commission appointed to make the examination shall have free access to the defendant at all reasonable times. This examination shall be conducted only when the petitioner is not under the influence of any psychotropic medication. No statement made by the petitioner in the course of any evaluation by any expert provided for by this Section, whether or not the petitioner consents to the evaluation, shall be admitted into evidence against the petitioner in any criminal, state post-conviction, or federal habeas corpus proceeding. The court shall subpoena witnesses to attend the examination at the request of the district attorney, the defendant, the commission, or any member of the commission.

G. The report of the competency commission members shall address their specific findings with regard to the defendant's ability to understand that he is to be executed, and the reason he is to suffer that penalty.

H. The court order for a competency examination shall not deprive the defendant or the district attorney of the right to an independent mental examination by a physician or mental health expert of his choice, and such physician or mental health expert shall be permitted to have reasonable access to the defendant for the purposes of the examination.

I. Once the issue of mental incompetence to proceed to execution is raised by the defendant, and upon written motion of the district attorney, the defendant shall provide the state, and any members of the competency commission, within time limits set by the court, any and all medical, correctional, educational, and military records, raw data, tests, test scores, notes, behavioral observations, reports, evaluations, and any other information of any kind reviewed by any defense expert in forming the basis of his opinion.

J. If the state exercises its option to an independent examination pursuant to Subsection H of this Section, and upon written motion of the defendant, the state shall provide the defendant, and any members of the competency commission, within time limits set by the court, any and all medical, correctional, educational, and military records, raw data, tests, test scores, notes, behavioral observations, reports, evaluations, and any other information of any kind reviewed by any state expert in forming the basis of his opinion.

K. By filing a petition under this Section, the defendant waives all claims of confidentiality and evidentiary privilege to, and is deemed to have consented to the release of any and all records solely relative to the issue of the defendant's competence to proceed to execution, which may include medical, correctional, educational, and military records, raw data, tests, test scores, reports, evaluations, and other records relevant or necessary to an examination or determination of his mental condition.

L. The issue of the defendant's mental incompetence to proceed to execution shall be determined by the court in a contradictory hearing. The report of the competency commission is admissible in evidence at the hearing, and members of the competency commission may be called as witnesses by the court, the defense counsel, or the district attorney. Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense counsel, by the district attorney, and by the court. Other evidence pertaining to the defendant's mental incompetence to proceed to execution may be introduced at the hearing by the defense counsel and by the district attorney. The introduction of evidence at any hearing held pursuant to this Section shall be governed by Code of Evidence Article 1101(B).

M. After considering the evidence, the district court shall determine that the petitioner is not competent to proceed to execution if it determines, by a preponderance of the evidence, that the petitioner presently lacks the competence to understand that he is to be executed and the reason he is to suffer that penalty.

N. If a defendant is found incompetent to proceed to execution, he shall be incarcerated in accordance with R.S. 15:568.

O. Any subsequent petition filed by a defendant pursuant to this Section following a previous finding of competence to proceed to execution shall comply with the requirement of Subsection C of this Section, and further shall allege specific facts which, if proven by a preponderance of the evidence, show a material change in the defendant's competence to proceed to execution.

P. State's experts may examine a defendant found incompetent to proceed to execution not more than once every ninety days following such a ruling without further orders of the court and upon written notice to the defendant, or his counsel if the defendant is represented. At any time following a finding of incompetence to proceed to execution, the state may provoke a hearing to determine the defendant's competence to proceed to execution by filing a motion with the sentencing court alleging a material change in circumstances.

Q. Any party against whom a decision is rendered pursuant to this Section may make an appropriate application for a writ of certiorari or review directly to the Louisiana Supreme Court.

Acts 2004, No. 720, §1.