Supreme Court: Post Conviction Counsel Money Supreme Court:  Post Conviction $ from LIDAB (State v Mitchell 98 KP 2445 9/4 99)

The first test case in the wake of Statutory mandates for LIDAB to fund Capital Post Conviction counsel puts the bill on LIDAB's doorstep. In an unanimous Writ Denial, the Supreme Court simply noted that Eddie Mitchell should " See R.S. 15:149.1; R.S. 15:151.2(E)(2). Relator may seek funding from the Louisiana Indigent Defender(sic) Assistance Board."

The ruling means the Supreme Court will not mandate some other government entity to fund counsel for Capital Post_Conviction work. That leaves the LIDAB coffers, lacking any earmarked funds for that purpose, subject to potential attack. The losers would be District Assistance Fund participants, whose money could be adversly affected.

LaPDA filed Amicus in the Mitchell application, seeking a mandate from the Court for funding in this arena, and arguing that no funding mechanism presently exists. Jelpi Picou testified in the District Court that LIDAB had no money for CPC, but the Supreme Court seems to have rejected that in finding that Mitchell could seek funds from LIDAB.

This scenario was what led the LaPDA to oppose the statutory mandate added to Title 15 in 1999 which required LIDAB to provide that Post_Conviction Counsel. The bill passed with support of LACDL, the LDAA and others.

Mitchell is a mentally retarded man facing Death in a Capital Murder out of Calcasieu Parish. NOV 19 _ 20 CRIMINAL LITIGATION SEMINAR TO INCLUDE CAPITAL AND JUVENILE TRACKS

Kentucky Mitigation experts and litigators will join LaPDA and the Louisiana Juvenile Justice Project in the 10^thAnnual Criminal Litigation Seminar this November at the Hotel Acadiana in Lafayette. Sidetracks for Capital and Juvenile Criminal Practice will complement a strong Plenary Program that includes Recent Developments, Drug Court, Cocaine_Alcohol abuse, Juvenile Transfers, Ethics and Professionalism. It was 10 years ago that the first Seminar by Public Defenders for Public Defenders, sponsored by the 15^th JDC Defender Office, was held at the same hotel in Lafayette. That program was attended by approximately 25 attorneys. Last year over 200 signed up for the biggest and best Criminal Litigation Seminar in the State.

DEFENDERS HEAR NEW D.A.F. /EXPERT

FUNDING PLAN

Public Defenders from across the State attended a special workshop on the LIDAB in Baton Rouge on August 20^th. Staff Director Jelpi Picou presented an overview of changes in effect as of July1st for the State Assistance Board.

At the outset, it appeared that the LaPDA's call last November to get the State Office out of the business of reviewing experts one by one has been heeded. Expert bills will be handled at the District level from now on. Funds will be provided as part of the District Assistance Fund Grant.

In addition, the DAF process has been streamlined, down from a 32 page application to a 2 page form. The State will work on getting out of funding Capital Trial Counsel, and that money will go into the DAF as well.

Some PD's expressed concern that their particular Districts would suffer because of extreme caseloads in the Capital Arena, but the Board of LaPDA voted to support "distribution of the DAF without weighting for Capital Cases" but added that emergency funding should be available for special circumstances. Rapides and East Baton Rouge dissented.

The upshot of the meeting was that the Districts will bear primary responsibility for budget and spending matters, including experts. DAF will become the main grant program for getting State money to the Districts.

The LIDAB is also very concerned about Juvenile Justice in Louisiana. Clearly, there is a tremendous lack of funding for that leg of the system. Jelpi has trekked to a number of meetings, looking for grant funding to boost the system in that arena.

As to funding Capital Appeals or Post Conviction, Jelpi indicated that there is no money for that. The Fiscal Note on the LIDAB did not include it, and Jelpi indicates the staff will urge the State Board to reject any attempt to raid DAF for Capital Cases.

There is a legitimate concern however, that the statute and the press by outside counsel for fees may threaten the DAF and change the fundamental character of the State IDAB. Time will tell.

No_one really asked the question about the failure of LIDAB to make a second round of DAF in a "competitive grant" format. Reportedly the second DAF disbursement went to a few big districts that were in dire financial straits. The point was also made however, that the Districts now have legal authority in Title 15 to increase their costs assessment to $30 per case, an increase of over 20% for any District still at $25 per case.

Overall, counting all resources, Public Defender funding is at an all time high. Much remains to be done, but people in the system for a while have seen a great deal of improvement.

STATE V BALLARD 98 k 2198  (La. 1999)

"The Simmons court determined that the automatic disqualification of an actively serving law enforcement officer from service on a criminal jury is a means to the constitutionally guaranteed end of an impartial trial found in LA. CONST. art. I, § 16. Applying Simmons, a trial court must disqualify a law enforcement officer even if the officer testifies under oath that he or she may render an impartial verdict according to the law and evidence."

"Law enforcement officers are sworn to uphold the laws of the state, which laws include the provision of a fair trial to each and every defendant. If a law enforcement officer testifies under oath during voir dire that he can be a fair and impartial juror, the trial judge has the discretion to determine whether that officer is speaking the truth. The disqualification of all law enforcement officers from service on a jury disregards whether or not the judge, whose rulings on challenges for cause are given great deference in all other instances, accepts the officer as a fair and impartial juror. We find that such a disqualification amounts to an irrebuttable presumption of untrustworthiness in law enforcement officers and is an affront to police officers in this state."

The decision indicates that a Trial Court has the discretion to determine bias without the presumption of Simmons.

COMMENT: THE COURT IS BEING UNREALISTIC. THE PRACTICAL MATTER IS THAT ANY ACTIVE LAW OFFICER MUST BE ON A MISSION FOR THE PUBLIC GOOD: "WAR ON DRUGS"; "WAR ON CRIME". CONCERN FOR WHETHER A RULE OF LAW IS "AN AFFRONT" TO POLICE IS MISPLACED, AND THERE IS NO BASIS FOR ASSERTING THAT THE SENSIBILITIES OF POLICE OR OTHERS MAKE A SUITABLE FOUNDATION FOR DUE PROCESS. WE TRUST OUR LAW OFFICERS TO BE AGGRESSIVE, ANTI_CRIME AND ZEALOUS IN THE PURSUIT OF THE LAWLESS. IT MAY BE MORE INSULTING TO ASSERT THAT THEY CAN BECOME NEUTRAL ADJUDICATORS.

In concurrence, Justice Calogero seeks to impose a note of caution:

"I agree with the majority's disapproval of the overly_broad declaration in State v. Simmons, 390 So. 2d 1317, 1318 (La. 1980), that "an actively employed criminal deputy sheriff is not a competent criminal juror." The fitness of a prospective juror should rightly be determined on a case_by_case basis after consideration of the grounds

to support a challenge for cause set forth in La. Code Crim. Proc. art. 797. However, given the accused's constitutional right to trial by a fair and impartial jury, as well as the important goal of maintaining "public confidence in the administration of justice," Allen v. Hardy, 478 U.S. 255, 259, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986), particular care should be taken in determining the ability of law enforcement agents to serve as fair and impartial jurors in a criminal trial."

"La. Code Crim. Proc. art. 797(3) incorporates a rule of implied bias as old as the common law. See United States v. Wood, 299 U.S. 123, 138, 57 S.Ct. 177, 182, 81 L.Ed. 78 (1936) (At the common law, certain relationships carried with them "'prima office "must be affected by that employment relationship." 390 So. 2d at 1318. There, we reasoned that such a relationship would have influenced the prospective juror's verdict, thereby justifying the deputy's removal for cause under Article 797(3). Id.. . . . .

"In addition to the employment relationship, other possible causes of partiality arise in the context of law enforcement agents serving as petit jurors. As the majority here acknowledges, 98_2198, p. 4, the prospective juror's duties or expertise in a particular criminal activity or investigatory method may warrant excusing the juror for cause under La. Code Crim. Proc. art. 797(2). The accused's constitutional right to a fair trial would be compromised were the risk too great that the prospective juror's occupation and experience would overwhelm not only his own judgment but also the judgment of the other jurors on the panel. . . . . .

COMMENT: DEFENSE COUNSEL MUST, IN LIGHT OF THE DEVELOPMENT, BE PREPARED TO FULLY EXPLORE THE OBVIOUS: POLICE OFFICERS ARE BIASED AND INTERESTED. ALTHOUGH THE MAJORITY SEEMS SATISFIED WITH WHAT THE OFFICER 'BELIEVES' ABOUT HIS FAIRNESS, THE INQUIRY IS NOT A PROSPECTIVE JUROR'S SUBJECTIVE BELIEF, IT IS WHETHER THE JUROR'S ANSWERS OVER ALL SHOW THAT HE CANNOT BE FAIR AND IMPARTIAL.

STATE V SMITH 98 k 2045 (La. 9 / 8/ 99)

Rape Defendant wanted to present evidence that complaintant in a sex crime had made false allegations against another relative prior to the case at bar. Trial Court heard the question under Code of Evidence Art. 412. (Rape Shield) REVERSED

Court says the evidence was not of the past sexual activity of the victim, but impeachment used to attack the credibility of the victim. The Court reversed the conviction, holding that the exclusion of this exculpatory evidence (impeachment) was not harmless error. OVERRULES State v Allen 97 1058 (La. 4 / 30 / 97)

LAFAYETTE

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