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Trustees of Freedom
Dedicated to The Right to Counsel	October 26, 1998 Vol. 6 No. 5

NINTH CRIMINAL LITIGATION SEMINAR AT LAFAYETTE HILTON NOVEMBER 6 & 7

LAFAYETTE- Nearly 200 Criminal practitioners are set to meet at the Lafayette Hilton for the Ninth Annual Criminal Litigation Seminar the first weekend in November. The program includes a separate Juvenile Justice Track of 4 Hours, and an unusual retrospective on the Fourth Amendment by Cheney Joseph and Catherine Hancock.

Joseph is Executive Counsel to the Governor and an LSU Law Professor. Hancock is a Tulane Law Professor. With the new problems of drugs and the new strategies of interdiction, this is a timely review of the one of the sacred pillars of our democracy.

REGISTRATION is still open, but if you sign up after November 3, written materials cannot be guaranteed. (318) 237 2537

A Lafayette Doctor was convicted of Attempted Murder October 23^rd in Lafayette, in part because the State showed that DNA of an AIDS virus in the victim was closely related to the DNA in a virus from one of the Doctor's AIDS infected patients. Despite evidence presented by the Defense, which included Mike Fawer, Bill Campbell, and Gerald Block, the Jury voted 10 - 2 to convict Dr. Richard Schmidt of Attempted Murder.

The case included allegations of a romantic affair with the victim. The State said the affair went bad and Schmidt wanted to prevent the victim from seeing other men. Testimony from at least three DNA experts and one AIDS expert dominated the Trial.

LAPDA.ORG INTERNET SITE UP

Louisiana Public Defenders are on the Web, with an address of "LAPDA.ORG". The Site includes links to other law sites and also archives of past "TRUSTEES OF FREEDOM", so if there's an issue of interest to you, it should be on the site. Development is continuing, and if you have some ideas, we welcome them. The E Mail Address is CEO@LAPDA.ORG. The site is simply LAPDA.ORG. We expect to continue to expand the site and eventually offer some "Members Only" services, such as a brief bank or other specialized Defense resources.

In addition, the site will eventually be a good place to download forms and cases. Right now there are two recent cases available on site in PDF format. (See Recent Developments)

Recent Developments

US v LOWRY, 97-368 CR; Dist. Court So. Fla. (8/4/98)

The Tenth Circuit caused a stir when it held that promises of leniency in return for testimony amount to Public Bribery. (SINGLETON) Although the decision has been vacated pending en banc review, the prospect of application of "public bribery" law to the plea bargaining process is now a reality.

In Florida US v LOWRY applied the same rationale, holding that it is "difficult to imagine something of greater subjective value to a defendant facing incarceration than the promise of a lesser sentence.

One Louisiana District Court has rejected this reasoning: US v DUNCAN, Crim A 97-217 (ED La. 1998)

The provision is 18 USC 201(c)(2). Two Senate bills have been introduced to change the law. Not to repeal Public Bribery, but to give prosecutors an exemption.

Would a defense witness be allowed to testify if he had been compensated?

STATE v ROBERTSON 97 kk 2960 (La. 10/20/98)

The Supreme Court holds that an anonymous tip must have elements of "predictiveness and corroboration" in order to provide reasonable suspicion for a stop. The Court says that in this case the 4^th Circuit and Trial Court erred, because the tip was very general.
The Court relied on ALABAMA v WHITE, a US Supreme Court case for the proposition that a tip has to provide information on "future behavior" in order to justify a stop.

The Court said the tip was lacking indicia of "insider information" or "special familiarity" with the offender that would authorize reliance for a stop.
FOR FULL TEXT visit LAPDA.ORG and go to RECENT DEVELOPMENTS. (on the Internet)

The Trial Court must refer to some specific aggravating factors to support a consecutive sentence when the offense conduct is a single continuing series of acts. The case

verdict under Capital Indictment must be UNANIMOUS, even if not 1^st Degree MURDER

State v. Self 98-39 La.App. 3 Cir. 8/19/98
Trial Court erred in accepting 10 of 12 for verdict in Aggravated Rape conviction, where the charge was rape of child and under statute could have led to Death Penalty. Despite the fact the State was not seeking Capital Punishment, the provisions of CcrP art. 782 required that the Jury decide the case unanimously. If the State did not want Capital Punishment, it should have indicted for lesser offense.

[Legislative amendment now authorizes the D.A. to opt out of the unanimous verdict on Aggravated Rape. However, the rationale would still require unanimous verdict in any other Capital Case, even for the responsive verdicts]

two year shoplifting sentence upheld: PSI error citing 1995 conviction instead of 1983

State v. Wilson 30,880 La.App. 2 Cir. 8/19/98

The Second Circuit upheld a 2 year sentence for a "Wal Mart Shoplifter" who had one prior conviction. In this case, the perpetrator loaded a large trash can with items and was stopped before leaving the land of falling prices.

Defense counsel pointed out that the MO was insane, since it made the perp. most conspicuous.

But the Trial and Appellate Courts were more concerned that the defendant denied any intent to steal, and found that denial justified the 2 year sentence, where the maximum was 10 years.

State v. Branch 30,733 La.App. 2 Cir. 7/06/98

"Branch failed to file a motion to reconsider sentence as required by > La.C.Cr.P. art. 881.1. The failure to make or file a motion to reconsider sentence relegates the defendant to the bare claim that the sentence is constitutionally excessive. State v. Duncan, 30, 453 > (La.App.2d Cir. 2/25/98), 707 So.2d 164. The fact that Branch represented himself does not change this result."

Court goes on to find 18 years without benefit was ILLEGAL, as statute authorized only first 10 under those restrictions. So the sentence was AMENDED to accord with the law. La. R.S. 40:967Gsimple statement of intent to Appeal not sufficient 881.1 Motion to preserve review of Sentence

First Circuit would not review sentence where attorney at sentencing merely gave notice of intent to Appeal. Court finds that does not meet requirements of 881.1

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