Trustees of Freedom| Trustees of Freedom |
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| Dedicated to The Right to Counsel | August 4, 1999 Vol. 7 No. 3 |
21st LOSES CAREER CHIEF:
"What matters is not that you do a good job.
What matters most is who they want in"
After 28 years, the outspoken Sam Dileo has announced he's finished with Public Defender work in the 21st District. Sam expressed concern that the system of Boards appointed by the District Judges cripples leadership and supervision in the field. He pointed out that the Board in the 21st insisted on approving every administrative decision.
Generally, the view is that District Boards are Supervisory, not Management agencies, but in Sam's case it appears another philosophy prevailed.
Sam also told the local press in Amite that the power of District Judges to name the Board of the Indigent Defender makes for an uncomfortable ethical situation. "The Judges appoint the board members, yet I have to go into court to present a case before those judges. The system is flawed."
The issue has come up before. Some Districts have effective boards that cooperate with administrators. Others have boards comprised of people who want to use the power to hire as a form of patronage. In Sam's case, the Chairman of the 21st Board says Sam did a great job, but now the Board hopes to find a full-time chief.
The system of local boards dates back to the days when Indigents first gained the right to counsel. At that time, District Attorneys and Judges were concerned that the local IDB could be too independent. The Judges could protect the D.A.'s office by their authority to control the money to the IDB and the supervisory Board. Most Districts have grown out of that 19th Century model, but not all.
Hopefully Sam's views will someday prevail and the law will change to give local Defenders the essential professional independence they need to serve their clients.
Its not clear how many Public Defenders would agree that the Board system is outmoded, but LaPDA will likely address the issue in the near future.
COCAINE - ALCOHOL AXIS
TOPIC FOR FALL SEMINAR
We intuitively know it, but at this Fall's Criminal Litigation Seminar we can hear the Science on it. The connection between Cocaine and alcohol has been seen on the street for a long time. Now Pat Kent, Administrator of the State's largest substance abuse treatment center, will bring us the latest information on this severe form of substance abuse. What it means to your client and the Criminal Justice System is an important issue. Pat has just returned from the latest training in the field, and has learned that the cocaine effect is amplified by alcohol. Plan to join LaPDA for the November 19 - 20 program.
CAPITAL POST CONVICTION
NOW ON IDAB 'TO DO' LIST
The State Board now has a statutory mandate to appoint counsel for post-conviction work in Louisiana Courts. The Legislature did not appropriate any additional money for this program however. LaPDA had opposed any unfunded mandates because of concern that DAF could be impacted.
The state board has adopted rules and procedures for Capital Post Conviction work and Staff Director Jelpi Picou is seeking funds. LaPDA has been assured that the program won't be allowed to impact current LIDAB efforts.
The Statute however, does use the legally significant "shall" in establishing LIDAB as the primary resource for Death Sentence post-conviction work. Whether the fiscal provisions can be presented to the Trial Court as a reason not to require spending may be another issue altogether. Local IDB's are well aware of the obligations/funding dichotomies. We can only hope that in this case the funds desperately needed by the locals are not chewed up in a few high profile death cases.
While the glamor and high profiles go to Capital work, there are thousands of people in jail in Louisiana. Some of them may actually be there because they didn't have access to the resources needed to establish the actual facts in their case. That is no less tragic than a Capital Sentence.
Aug 20 Conference to Review Current LIDAB Issues:
MONEY, MONEY and MONEY!!
LaPDA has invited a representative from each District to lunch with Jelpi and other representatives of the LIDAB on August 20th in Baton Rouge. The hope is to get a direct response to questions about current spending and LIDAB programs. If your districthasnot decided to send someone, please call G. Paul at 318 237 2537 to make arrangements to have your program's views considered there.
RECENT DEVELOPMENTS
KUMHO TIRE CO. v. CARMICHAEL (97-1709) http://supct.law.cornell.edu/supct/html/97-1709.ZS.html
Decided March 23, 1999 Opinion author: Breyer
US SUPREME COURT holds that Daubert requires the Court to impose the gate-keeping function on any expert, not just scientific experts. The Court says Daubert was a science case, but the Code of Evidence applies to any expert opinion offered. So the Court says the Daubert rationale must be applied before an expert should be allowed to testify at trial.
STATE v LANIEU, 98 KA 1260 (La. App. 1st Cir. 4/ 1/ 99)
the 85% Rule on Parole - Exposte Facto + Trial Court has no say in PAROLE ELIGIBILITY
Application of the 1995 amendment of LSA RS 15:574.4B to the instant case exposes the defendant to the possibility of additional penalties for his criminal conduct and thus violates the constitutional prohibitions against exp post facto laws. Additionally, we note that according to recent decisions by the Louisiana Supreme Court, parole eligibility is to be determined by the Department of Corrections pursuant to LSA RS 15:574.4 . . . Accordingly, rather than vacating the sentence and remanding for resentencing, we simply delete the provision denying parole eligibilty under the 1995 amendment to LSA RS 15:574.4B . .
1999 Legislation:
HOUSE BILL NO. 540
Be it enacted by the Legislature of Louisiana: Section 1. R.S. 15:146(E) is hereby enacted to read as follows:
E. No defendant who has retained private counsel of record shall be assessed any costs to be credited to the indigent defender fund, other than the special costs established by Subsection B of this Section, unless the indigent defender board has provided representation of record for that defendant at some point in that criminal proceeding.
HOUSE BILL NO. 63 (Duplicate of Senate Bill No. 277)
Be it enacted by the Legislature of Louisiana:
Section 1. R.S. 15:571.3(C)(4) is hereby amended and reenacted toread as follows:
571.3. Diminution of sentence for good behavior
* * *
C. Diminution of sentence shall not be allowed an inmate in the custody of the Department of Public Safety and Corrections if:
(4) The inmate has been convicted two or more times under the laws of this state, any other state, or the federal government of any one or more of the following crimes or attempts to commit any of the
following crimes: (a) Carnal knowledge of a juvenile. (b) Indecent behavior with juveniles.
(c) Molestation of a juvenile.
HOUSE BILL NO. 109
(Allows lenient sentence to be amended sua sponte or by Motion of State)
AN ACT
Be it enacted by the Legislature of Louisiana:
Section 1. R.S. 15:301.1 is hereby enacted to read as follows:
15: 301.1. Sentences without benefit of probation, parole, or suspension of sentence; correction
A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed
to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or
suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.
B. If a sentence is inconsistent with statutory provisions, upon the court's own motion or motion of the district attorney, the sentencing court shall amend the sentence to conform to the applicable statutory provisions. The district attorney shall have standing to seek appellate or supervisory relief for the purpose of amending the sentence as provided in this Section.
C. The provisions of this Section shall apply to each provision of law which requires all or a portion of a criminal sentence to be served without benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, or any substantially similar provision or combination of substantially similar provisions.
D. Any amendment to any criminal sentence as authorized by the provisions of this Section shall be completed within one hundred eighty days of the initial sentencing.
Section 2. The provisions of Section 1 of this Act shall legislatively
overrule the cases of State v. Jackson, 83-2360 (La. S.Ct. 6/25/84), 452 So.2d
682, Pierre v. Maggio, 83-0806 (La. S.Ct. 1/27/84), 445 So.2d 425, and any
other case which is contrary to the provisions of this Act.
HOUSE BILL NO. 1764 authorizes intensive probation/parole for certain cocaine offenses.
Other acts authorize the release of a pre-sentence report to victims and their family, mandate a post-conviction Capital Program for the State IDB, and increase the maximum IDO Court Costs from $25 to $30 per case. FOR COMPLETE DETAILS, GO TO THE LAPDA WEB AT http://www.lapda.org, and check on recent developments.
Mark you calendar: CRIMINAL LITIGATION SEMINAR
NOVEMBER 19 & 20
HOTEL ACADIANA, PINHOOK ROAD
LAFAYETTE