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| Dedicated to The Right to Counsel | May 10, 1999 Vol. 7 No. 2 |
Bad Bills Pending in 1999 Regular Session
Bad facts make bad law, and there are some bad laws being considered in Baton Rouge this Session. LAPDA members were invited to a review session in late April, and took a look at a series of bills, some of which were good. But there were some bad and ugly ones too. Current information is at the lapda.org site on the Web, but here's a sample:
HB 540 - Marionneaux No IDB costs to be paid when defendant has retained counsel of record. [ Would bar reimbursement under 15:148]
HB 63 - Schneider No good time after two or more sex offense convictions.
HB 109 - WINDhorst Court may correct illegally lenient sentence on its motion or that of D.A. any time up to 180 days after sentencing.
HB 225 - Salter Creates crime of BARRATRY, essentially solicitation of a Personal Injury client in person on by telephone.
HB 506 -WINDhorst Allows Parole Eligibility for non-DOC prisoners.
HB 683 - Copelin Provides that Possession of Drug Paraphernalia is a responsive verdict to charge Possession of Cocaine.
HB 789 - Marionneaux Provides that the total of Costs and Fines in criminal conviction is limited to the maximum fine. Authorizes all Courts to suspend costs without limitation.
HB 914 - Toomy Presentence Report may be given to DA and Victim. (Does not mention defendant)
HB 965 - Dupre Creates crime of refusing chemical sobriety testing.
HB 1764 - Queazaire Authorizes intensive probation for First and Second Offense, Possession of Cocaine.
HB 2006 - Riddle Cost to Indigent Defense Fund shall be $30 per case.
HB 2035 - Landrieu, Windhorst, et al Requires the LIDAB to provide Post-Conviction Counsel to every client sentenced to Death, including Federal Relief.
KENTUCKY TO HELP WITH JUNE 11
DEATH BY TRIAL PROGRAM
IN ALEXANDRIA
The Kentucky Department of Public Advocacy is sending three Death Penalty Litigators to Alexandria to assist in DEATH PENALTY TRAINING at the 6th Annual Death By Trial Program at the Bently Hotel. Check our CLE Section on the Web or Call 1 318 237 2537.
This year's program includes training on Jury Selection, Motions Practice, Mitigation and a lot of practical advice:
THE DEATH PENALTY JURY - Selection/Qualifying/Louisiana's Voir Dire - G. PAUL MARX
THE CASE FOR LIFE: ON A SHOESTRING - Preparing for beginners - KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY
EARLY ENTRY ISSUES IN CAPITAL LITIGATION - Jump Starting defense strategies when the case first shows up - KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY
MITIGATION - NEUROLOGY AND PSYCHOLOGY - Using the mental and neurological deficits of the client to push for Life - DR. VICKIE GREGORY
A THEORY OF THE CASE - Developing a theory of the case that considers both the Guilt Phase and the Penalty Phase - KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY
THE PLEA: THE CLIENT - Bringing the ALPHA WOLFE in your client's life into the fold - KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY MOTIONS IN CAPITAL CASES - How Brady and Daubert bring new utensils to the table for the Defense - G. PAUL MARX
Complete details have been sent out. If you don't have yours, call Germaine at 318 237 2537, check the Web at http://www.lapda.org, or fax the office at 318 232 4518. We expect a good turnout at the classic Bently Hotel in downtown Alexandria.
PRISONS BOOMING:
LOUISIANA IN #2 IN PER CAPITA INMATES
Only TEXAS locks up more people per capita than our own State. Louisiana has over 26,000 people in State and Federal custody. That means hundreds more are jailed by Parish and City authorities.
The jail rate is FOUR TIMES what it was in 1977, and nearly TWICE the rate of increase seen across the US as a whole.
And Louisiana is the only State imposing TRUE LIFE, which is to say "natural life" sentences for the six most serious crimes. And despite this explosion, DOC has not had the same level of increase in its budget as other state agencies. DOC got 89 percent more money since 1985, while the state generally saw an increase to 92 percent.
PARALEGAL BUSTED FOR POSING AS 'REAL LAWYER' IN IDO OFFICE
Fifty-eight year old Robert Matthews, an investigator in the Baton Rouge PD Office, was booked with practicing law without a license in March.
State Police said Matthews was handling Personal Injury suits all the way to settlement. They reported that files in Matthews' possession included letters and messages to and from Insurance Companies regarding settlement of damage cases.
Matthews has worked at the Baton Rouge PD for nearly 20 years. While serving time in Angola, he had filed several suits to improve prison conditions.
NO MONEY, NO JUSTICE!
Several Rules to Continue Capital cases have been filed in District Courts, seeking to delay trial of Death Penalty Cases until sufficient funding is provided for lawyers.
In Baton Rouge, David Price told the Morning Advocate that "lawyers are saying 'I'm wiling to do the work. . . but I want to know, who is going to pay me?"
East Baton Rouge owes over $250,000 to conflict and Capital attorneys, and the question has become: where can we get this money? Jelpi Picou of the LIDAB says there is no more money for EBR in the State budget, which has taken on about 65 Capital Cases.
Meanwhile, D.A. Doug Moreau of Baton Rouge continues to urge the IDO to more carefully screen clients. Moreau contends that too many clients are being represented by Public Defenders, and that caseloads would be cut by tighter screening.
Most studies show that in even the best screened populations, Public Defenders will get over 75% of the Criminal Defense Work. Plus, it costs nearly as much to screen applicants as it does to represent them in some Court proceedings.
RECENT DEVELOPMENTS
For More: LAPDA.ORG on the Internet
DAUBERT: All Experts:
KUMHO TIRE CO. v. CARMICHAEL (97-1709)
Argued December 7, 1998 -- Decided March 23, 1999
Held: The Daubert factors may apply to the testimony of engineers and other experts who are not scientists. Pp. 7-13.
(a) The Daubert "gatekeeping" obligation applies not only to "scientific" testimony, but to all expert testimony. Rule 702 does not distinguish between "scientific" knowledge and "technical" or "other specialized" knowledge, but makes clear that any such knowledge might become the subject of expert testimony.
Search of Passenger's Purse: OK
WYOMING v. HOUGHTON (98-184)
Argued January 12, 1999 -- Decided April 5, 1999
Held: Police officers with probable cause to search a car, as in this case, may inspect passengers' belongings found in the car that are capable of concealing the object of the search.
In determining whether a particular governmental action violates the Fourth Amendment, this Court inquires first whether the action was regarded as an unlawful search or seizure under common law when the Amendment was framed, see, e.g., Wilson v. Arkansas, 514 U.S. 927, 931. Where that inquiry yields no answer, the Court must evaluate the search or seizure under traditional reasonableness standards by balancing an individual's privacy interests against legitimate governmental interests
Third Circuit: DEFENDANT must require transcription . . failure is waiver
98-994 La.App. 3 Cir. 2/3/99, State v. Bernard, (La.App. 3 Cir. 1999)
------------ Excerpt from pages 1999 WL 44893 *5-1999 WL 44893 *6.
There was no transcription of the sidebar contained in the record. > La.Code Crim.P. art. 914.1 puts the burden on the party requesting the appeal to make sure the record is complete so that the appellate court is able to review the merits of appellant's claim. Because the Defendant had that burden, but did not insist the sidebar be transcribed, we find the Defendant has waived his right to raise this issue on appeal
GROUP REHABILITATION ON VOIR DIRE NOT SUFFICIENT
98-904 La.App. 3 Cir. 12/9/98, State v. Lewis, (La.App. 3 Cir. 1998)
------------ Excerpt from pages 1998 WL 857957 *4-1998 WL 857957 *5.
We, on the other hand, disagree. We do not find such a method of rehabilitation to be effective to rebut a juror's unambiguous expression of partiality resulting from an individual questioning. Instead, we find that the state or the court should have rehabilitated Ms. Armentor and Mr. Augustine by obtaining their unequivocal and affirmative expressions that they could overcome their initial feelings such as to apply the law and evidence.
We conclude that the trial court abused its discretion in denying the defendant's challenges for cause against these jurors. Accordingly, we reverse and remand this case for a new trial, pretermitting discussion of the defendant's other assignments of error.