Trustees of Freedom| Trustees of Freedom |
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| Dedicated to The Right to Counsel | July 8, 1998 Vol. 6 No. 4 |
Hundreds Study Life and Death
The stately old Bently Hotel in Alexandria was the site for the most
successful "Death by Trial" Seminar in five years of effort. The Bently is under
"re"construction, soon to be part of the "Radisson" chain, and the
seminar room did have the disadvantage of beautiful black columns which blocked some
views. But speakers generally left the podium and the ratings of attending lawyers were
excellent overall.
Ken Rodenbeck of the Rapides Defender Office said the turnout proves Alexandria is a convenient location for CLE attendance from across the state. Others thought the Bentley, with its grand lobby and ornate architecture, offers a classy backdrop for CLE work.
Michael Mears of the Georgia Multicounty Defender's Office and Timothy Derning from
Lafayette California topped a list of experts and lawyers presenting on Capital
Punishment. Denise Lebouef from the Loyola Death Penalty Resource Center pinch hit for
Jelpi Picou of the LIDAB, who had a last minute conflict.
FALL PROGRAM
NOVEMBER 6 & 7 LAFAYETTE
Special attention for DNA and Juvenile law will highlight the Fall 1998 Criminal
Litigation Seminar. The ninth annual program will include a full four hour track on DNA
from the ground up. Peggy Sullivan of Monroe is coordinating an intensive Juvenile Track,
including recent developments in the field and practical information on litigation
strategies. As usual, there will be recent developments and Capital Litigation.
LIDAB BOGGED DOWN IN EXECUTIVE BRANCH
The move from the Judicial to the Executive Branch has not gone smoothly. The Louisiana
Indigent Defense Assistance Board was moved to the Executive Branch after the last
Legislative Session. The changes include the fact that the Attorney General and the
Division of Adminstration must approve contracts for the LIDAB.
Newly retained staff attorney Marsha Oliver has been working to get all the contracts
up to state standards, and as of June 26 the bulk of that work is done. But the shift has
not been smooth. Lawyers with the Appellate Project have been forced to wait for over 60
days as the contract between LAP and LIDAB goes through the hoops. At most, partial
payments have been made on the lawyers' contracts with LAP while LAP waits for clearance
from the Division of Administration.
In July the LIDAB will revise all contracts with attorneys handling cases throught the
State. Over 200 contracts are involved in the revision. The official word is that
attorneys can expect delays in payment based on the administrative hurdles facing the
LIDAB.
The good news is that the LIDAB has its funding, approved in the Fiscal Session at 7.5
million dollars. There's some movement to have the program include post conviction work in
its mandate. Presently the legislation creating the program does not include that
prospect. A legislative resolution addressing the issue calls for a study of the cost and
benefits of such a program at the state level.
DAF REPORTS TO BE SHORTER
LIDAB says the District Assistance Fund quarterly reports will be streamlined this
fiscal year. (July) The forms will be a single page and include caseload totals only.
Detailed case information will not be required.
ONE A DAY FOR TEN YEARS TO CLEAR DEATH ROWS
It would take ten years to kill every death row inmate if we start today and execute one per day. That's not counting the new Death Sentences from Covington and Baton Rouge handed down the last week of June. As Michael Mears told our Rapides Parish meeting, there are already so many people on Death Row that we are looking at a long term issue.
The ever expanding list of offenses for which Death is the punishment means these numbers are likely to grow.
RECENT CRIMINAL DECISIONS
UNITED STATES SUPREME COURT
MUSCARELLO v. UNITED STATES
No. 96-1654 -- Argued March 23, 1998 -- Decided June 8, 1998
"use or carry firearm" includes having in car
In an interpretation of the sentencing enhancements for a drug crime including use of a
firearm, the Supreme Court holds that having the gun in the locked trunk or glove box is
sufficient to be "use" under the statute.
UNITED STATES v. SCHEFFER
No. 96-1133 -- Argued November 3, 1997
-- Decided March 31, 1998 44 M.J. 442, reversed.
Polygraph exclusion not unconstitutional.
In considering a Code of Military Justice provision that prohibited admission of
polygraph, the Court found that Due Process does not require admission of unreliable
evidence. The Court found the polygraph is not established enough to be admissible under
the Constitutional guarantees of a fair trial.
CAMPBELL v. LOUISIANA
No. 96-1584 -- Argued January 20, 1998 --
Decided April 21, 1998
673 So. 2d 1061, reversed and remanded.
white defendant could challenge racism in Grand Jury process
Fact that complaintant was white did not prevent an attack on a racially biased system
of empaneling the Grand Jury. The U.S. Supreme Court also notes that the Louisiana Grand
Jury raises some unusual issues, in that its foreperson is chosen by the Judge, and in
addition to being the chair, has a vote. The decision implies that there may be some
inherent problems in that unusual process. The holding is that the race of the defendant
does not bar a complaint that the system is racially biased.
SUPREME COURT OF LOUISIANA
No. 97-KA-0579
STATE OF LOUISIANA
versus
JAKE L. BOYD
Trial court found "needs medical attention" to be unconstitutionally vague. This
language is in the Battery on Police Officer law La. R.S. 14:34.2.
Supreme Court reversed, holding the Trial Court ruled prematurely and that the language
has a clear and understandable meaning.
SUPREME COURT OF LOUISIANA
No. 96-KA-2973
STATE OF LOUISIANA
Versus
SHAREEF COUSIN
Where prosecutor relied on impeachment evidence as substantive proof of fact, the Court
would REVERSE, finding such evidence has a limited purpose and admission or use of
impeachment for substantive evidence is reversible error.
State v Blue 97 2699 (La. App. 4 Cir. 1998) 705 So2d 1242
Confidential Informant advises that D is selling heroin in an area known for narcotics.
Description matched that of D. Police entered based on that information, testified that
once inside they got consent to search.
HELD: Entry into a protected area required probable cause, which was lacking in this
case. Therefore the entry was illegal and the consent granted thereafter was also illegal.
Motion to suppress was properly granted by Trial Court.
SEARCH: Pat Down - Insufficient for probable cause....
STATE v. MITCHELL, 96-999 (La.App. 5 Cir. 3/25/97); 692 So.2d 1251
Excellent case on the question of what the officer has to know and what he can do when he
"feels" something in the pocket. In this case the Court threw out the search
because the officer could not testify that the thing was contraband. It could have been
anything. The case includes some good cross examination of the officer on the question of
just what was in the pocket and what he thought it might be.
STATE V Lloyd Gets Little Attention
The Third Trial of Alvin "Scotty" Lloyd for a St. John rape/murder of a three
year old child has gotten relatively light publicity. Two previous Death Sentences were
vacated on Appeal, and Lloyd's Trial continues as this newsletter goes out. The case was
moved to Abbeville, Vermilion Parish, for the third Penalty Phase.
It seems that the Death Penalty may no longer be the big news it once was. One can only
wonder how the apathy of the public on this topic will impact the law. Could it be that
the people will begin to let the politicians know that there is little political gain in
the Capital Punishment? If so, that could be the best chance for ending it.
Clearly the Death Penalty in Louisiana is a political issue. Some people see it as a
way to reap political gain by trading on the bitterness and hate stirred up by terrible
crimes. Time will tell.
Professionalism IS NOT Ethics
Ethics and professionalism are different, and you cannot get CLE Credit on an
interchagable basis for those topics. Ethics is a Code of Conduct enforced by the Bar.
Professionalism amounts to "good manners" and "civility", which is to
say it is advisory and not mandatory. The Fall Seminar will include one hour on each of
these required CLE courses.