TRUSTEES
OF FREEDOM| TRUSTEES
OF FREEDOM |
|
| Dedicated to the Right to Counsel in Louisiana | May 26, 1997 Vol 5, No. 4 |
BATON ROUGE - Amid the
controversies of "Tort Reform" and battles over Higher Education, the 1997
Legislative Session will take a look this week at the proposed new setup of a State
Supplemental Defender Fund. A Legislative Study Commission found that the Louisiana
Indigent Defender Board should continue, with the current funding.
Senate Bill 1369 was passed by the Judiciary Committee on April 29th. The
most important change from the original is that Committee changes give the Governor's
Office virtual control over the State IDB and remove the Supreme Court as a appointing
authority. The Governor will appoint the bulk of the IDB and name its chairman.
This may damage the independence and effectiveness of the Supplemental Fund. It makes it
more political than ever!
LaPDA members should consider these issues and let their State Senators know how they
feel. The Commission Bill had included the Governor and the Supreme Court in the
appointment process. But with the virtual control in the amended bill, the Commission will
be subject to domination by District Attorneys and other politicians.
CONTACT your Legislators directly on these important issues. The Supplemental Fund has
improved the Public Defender System. There is a lot more to be done. Public Defenders
still don't have an established system of retirement, health insurance or other
rudimentary benefits of government service.
Ask your Senators to support SB 1369 and to amend out the Governor's control over
membership and leadership of the Supplemental Funding Program. Without your input, this
legislation will remain "as is".
A.G. Confirms Minutes Should be Published
A recent Attorney General's Opinion confirms that the recent changes in the law making
the Public Defender (Indigent Defender Board) a governmental unit means that minutes of
each Board Meeting should be published. For some time, the Open Meetings Law has been
known to apply, but recent legislation (1995) broadened the definition of the IDB. A.G.
Opinion 96 478 says the IDB has to publish minutes of proceedings, unless there is a
properly called Executive Session.
Budgets also must be published, and there should be a public hearing prior to approval
of the annual spending plan. Boards that don't follow these provisions could find auditing
and other trouble down the road.
D.A. Can't Extract Promise of Conviction
Ever have the D.A. ask a prospective juror to promise that if there is proof beyond a
reasonable doubt they will convict? This promise is prohibited under Louisiana Law,
because the jury has the absolute right to make any decision it believes is just.
STATE v. PORTER, 93-1106 (La. 7/5/94); 639 So.2d 1137 deals with the question by noting
that the defendant has a statutory right to a jury that is free to return a lesser verdict
"even though the evidence clearly and overwhelmingly supported a conviction of the
charged offense". The Court noted some older cases that affirmed the defendant's
right to a jury verdict of "Attempted Murder" even though the victim died. And
the Third Circuit has agreed, citing Porter with approval. STATE v. GUIDRY, 94-596
(La.App. 3 Cir. 11/2/94); 649 So.2d 486
In Voire Dire, the D.A. cannot therefore contradict the Jury's right to nullification
by extracting a promise to decide the case in a particular manner. This extends even to
the promise to return a verdict on the charge if the evidence provides proof beyond a
reasonable doubt, because that would prevent the juror from considering whether to
exercise the right to nullification. Any such impediment would violate the Defendant's
right to have the jury decide the case as the sole judge of the facts and the law.
LA IDB on the WEB
Not only can you find the Louisiana Legislature on the Internet, the LaIDB now has its
own Web Page. The new location is www.lidb.com. The site will provide links to other legal
sites. LaPDA will soon be Webbed as well. The Appellate Project has a page at
www.intersuf.com/~greenlee/lap.html.
HOW TO GET AN INTERNET CONNECTION AND USE E MAIL
It seems difficult, but in fact you can get E-Mail capability and internet access with a few simple steps. E-Mail makes communication simple by combining the best of mail and telephone. You have instant contact, but you don't have to drop what you're doing, because you can read the mail at your convenience.
FIRST: You Personal Computer has to have the proper hardware. This includes enough hard
drive and random memory to store the programs, and a processor fast enough to make
communication efficient. A good rule of thumb is about 16 Megabytes of RAM (random access
memory) with a processor speed of at least 133 Megahertz. This is about standard these
days, and anything more will just increase the efficiency of your communication. You also
need a MODEM, which is the electronic hardware that actually transmits (sends) and
receives the data. Speeds are rated by number, with the 9,600 as a minimum and a 33,300 as
one of the best. So, be sure you have the right hardware.
SECOND: The rest is easy. Go to the Office Supply or other store and buy NETSCAPE, or
if you have a new computer, Windows 95 will include the Microsoft version of a "net
browser". This is simply the software you need to dial up the interenet from your
desk. The software sets up your system, and will even help you select a
"PROVIDER", which is the company that lets you use their big computer to hook
up. That provider will also offer E-Mail.
THIRD: Get some E-Mail addresses, some internet sites, and get to work. Your service provider stores the E Mail until you download it to your computer, and your software makes reply nearly automatic. Plus you can do on line research virtually free, inlcuding the Louisiana Legislature and the State and U.S. Supreme Courts.
T.O.F. will offer more information on the NET in future issues.
Adams Not On Comet
T.O.F. has confirmed that rumors about Pete Adams hopping that spaceship behind the
comet are untrue. There had been reports that Adams had bumped the Heaven's Gate Cult
because he thought the "D.A. has a special function as an elected official" and
"if anybody's going to heaven it should be the members of this Association".
Such an approach does seem consistent with Pete's positions on Public Defender Funding,
but T.O.F. has been assured that Pete did not hop the comet spaceship. We are unable to
confirm the source of the story at this time. Apparently some thought that Adam's original
characterization of the La IDB as a "boondoggle" was an indication of being on
another planet. Many who have heard the arguments against the LIDB would be hard pressed
to argue that issues raised by Adams in the past have had a cosmic tint.
BLEICH's LAST STAND : DEATH PENALTY FOR CHILD RAPE
Proof again that "tough on crime" is no political insurance, now ex-Justice
Joe Bleich lost his re-election bid even though he authored the opinion that upheld
Louisiana's Death Penalty for Rape statute. The decision was reported as STATE v ANTHONY
WILSON 96 KA 1392 (La. 12/13/96).
Rather than dealing with the question of whether death for rape amounts to an arbitrary
penalty provision, the opinion played up the "standard of decency" it found in
the legislative intent. The court looked at the problem as one of
"excessiveness": ". . given the nature of the crime, the severity of the
harm inflicted upon the victim, and the harm imposed on society, the death penalty is not
an excessive penalty for the crime of rape when the victim is a child under the age of
twelve years old".
This reasoning, if it were the basis for deciding the Constitutionality of the Death
Penalty, would allow for almost any offense to be subject to Capital Punishment. Certainly
the mature women who suffer the horror of rape and battery can rely on the same argument.
And what of the 13 year old child? Is there something about an additional year that makes
rape more acceptible.
Unfortunately, the decision fails to make the hard choices based on a system of
Justice. Fortunately, it also reminds us that the electorate doesn't automatically choose
its leaders based on who is tough on crime. Perhaps in the future the Court will take a
more judicious approach and consider the fundamental issues of fairness and the practical
issues of cost that make the ever growing list of Capital Crimes in Louisiana a harsh
injustice. Our legal system has to be more than a popularity contest between the criminal
and the victim. It has to have a sense of Justice.
Louisiana, of all the States, should know by now that harsh sentences have nothing to do
with crime prevention. Responsible leaders would serve us well by educating the public on
that very point.