Louisiana looks to shed vestige of Jim Crow

In 48 states it takes a unanimous vote from a jury to convict a person accused of committing a criminal act. And, if you think about it, that makes sense given the burden of proof placed upon the state in a criminal trial. Oregon is the only other state that does not require a unanimous verdict -- unless the defendant is charged with murder.

Today in Louisiana, voters will be asked to decide if Louisiana wishes to join the vast majority of states in requiring a unanimous jury vote for a conviction; or if the Pelican State wishes to preserve one of the last overt tools of the Jim Crow era. Louisiana is the only state in which a defendant can be sentenced to life in prison on less than a unanimous verdict.

The so-called "split jury" was written into the Louisiana constitution in 1898 when a constitutional convention was called after the end of Reconstruction.

"It put into place a number of measures in order to — this is a quote from the convention itself — 'to maintain the supremacy of the white race.'"

-- Andrea Armstrong, Professor, Loyola University

The driving force behind the provision was to preserve a system of unpaid labor for white landowners. At the time of the convention, Louisiana had a policy of leasing out convicts for private businesses. The split-jury provision preserved the pool of free labor and made it easier for the state to convict and imprison black men.

The state Attorney General and local prosecutors are opposed to the constitutional amendment because it would make it harder for them to obtain convictions and it would take away some of their leverage when it comes time to plea bargaining. Of course, local prosecutors claim that they just want an efficient criminal (in)justice system and they don't want to have to worry about the time and expense involved in re-trials.

Well, tough shit, Mr. Prosecutor. You are doing your best to defend a system that denies millions of people due process. You are defending a system that is a hold-over from the days of Jim Crow and that was enacted specifically to keep a thumb on black people.

The coalition behind the ballot measure has made for very strange bedfellows with the measure passing the Republican-controlled state legislature with a better than 2/3 majority. George Soros and the Koch brothers have also put their money behind the measure.

If you live in Louisiana and haven't yet voted, please vote Yes on 2.

Bargaining with the devil

Corey Williams is a free man.

He spent 20 years in the Angola prison in Louisiana for a murder he didn't commit. Back in 1998, Mr. Williams was a developmentally challenged 16-year-old when Jarvis Griffin, a pizza delivery man, was shot and killed while delivering a pizza to a home in Shreveport.

Witnesses reported seeing some older men taking money and pizzas from Mr. Griffin. Those same witnesses said that Mr. Williams left the house empty-handed. Fingerprints on the murder weapon belonged to someone else and blood was found on the clothing of another suspect. There was no physical evidence linking Mr. Williams to the crime.

He was found by police hiding under a sheet at his grandmother's house. He denied killing Mr. Griffin but later, after hours of interrogation, changed his story. His confession lacked corroborating details.

Mr. Williams was convicted of the murder and sentenced to die. That death sentence was overturned by a district judge in 2004 because of Mr. Williams' mental disabilities.

Meanwhile, prosecutors had recordings of witness statements in which police indicated they believed that Mr. Williams was being framed for the murder. Dale Cox, the former Caddo Parish district attorney, argued in 2015 that he didn't have to turn over the recordings because defense attorneys hadn't proven that the recordings were exculpatory.

In the end, 44 former prosecutors and Justice Department officials signed a brief in support of Mr. Williams' claims before the US Supreme Court.

The appeal will never be heard because last week Mr. Williams agreed to plead guilty to manslaughter and obstruction of justice. The murder conviction was vacated and he was sentenced to time served.

On the one hand, we should be happy because an innocent man is now free; on the other hand, he shouldn't have had to agree to a plea deal to gain his freedom. Prosecutors played fast and loose with the rules and didn't hand over evidence that should have been disclosed prior to trial. Of course Mr. Williams couldn't prove anything on the recordings was exculpatory because he hadn't been allowed to listen to the recordings.

This is the problem with Brady material. The evidence is in the possession of the folks who are trying to convict the accused. The defense rarely knows what the state has in its possession if prosecutors decline to disclose it. As an aside, in Harris County (and the surrounding counties), prosecutors have open file policies of varying degrees - though it doesn't stop some evidence from being withheld.

Mr. Williams was forced to plead guilty because of the fear that his appeal would be denied. He was forced to plead in order to gain his freedom so that prosecutors could still point to a conviction in his case and so that the state wouldn't have to compensate him for the time he was locked up.

That was wrong. Once the whole story emerged in this case, the District Attorney should have asked a judge to vacate the conviction and order Mr. Williams freed. But even when the facts and law are on the side of the defendant, the state has the power.

Can acting in a client's best interest violate the 14th Amendment?

On Wednesday the US Supreme Court heard a case out of Louisiana that raised the question of whether or not a lawyer can tell a jury his client is guilty - over his client's wishes.

Robert McCoy lived in Louisiana with his wife Yolanda, their infant daughter and her son. Mr. McCoy was a violent man who threatened Yolanda with a knife. She eventually left with the children. She fled with her daughter but left her son with her parents so he could finish school.

Mr. McCoy killed her son and her parents and was charged with the three murders. There was a 911 call from Yolanda's mother in which she is heard talking to Mr. McCoy telling him that Yolanda and the baby weren't there. Then there was a gunshot and the line went dead.

Despite the evidence against him, Mr. McCoy maintained his innocence throughout the case. He told police the murders were the result of a drug deal gone bad.

At first Mr. McCoy was represented by a public defender - but he fired his attorneys when they refused to subpoena his alleged alibi witnesses. His parents then hired Larry English for the princely sum of $5,000 to represent their son.

Now, as an aside, if that was indeed the fee paid to retain Mr. English's services, someone should have known that this wasn't going to work out well for Mr. McCoy. The amount of the fee is much to low to represent someone facing the death penalty. It is a fee that screams out "I'm looking for a plea deal!" to anyone who would listen.

Mr. English set about trying to convince Mr. McCoy that it was in his best interest to plead guilty in an attempt to get the death penalty off the table. But Mr. McCoy refused to change his plea. So, Mr. English set about on his trial strategy to save Mr. McCoy's life -- even if he didn't want saving.

“People can walk themselves into jail. They can walk themselves, regrettably, into the gas chamber. But they have a right to tell their story.” - Justice Sonia Sotomayor

At trial Mr. English repeatedly told the jury that Mr. McCoy was guilty of the murders. According to Mr. English, his goal was to get the jury to convict McCoy of the lesser charge of second-degree murder because he suffered from diminished mental capacity, thus sparing his life. Unfortunately for everyone involved, Mr. English was not up on the law in Louisiana (as if this should have surprised anyone). You see, in Louisiana you are only eligible for a diminished capacity defense if you have entered a plea of not guilty by reason of insanity. Oops.

In the end, Mr. McCoy was convicted on all three counts and sentenced to death. He then appealed, arguing that his right to due process was violated when his attorney told the jury he had committed the murders, despite his protests of innocence.

On the one hand, this matter seems fairly straight forward. An attorney works for his client. He doesn't have to like his client. He doesn't have to agree with his client. But his job is to represent his client to the best of his ability. A client has the right to enter a plea of his choice. A client has the right to request a bench trial or a jury trial. A client has the right to take the stand to testify if he so desires. The attorney's role is to advise the client as to the best course of action.

But what if the client ignores what's in his best interest? What if a client has the chance to mitigate the damage but chooses not to do so? What if the client is following down a path that will lead him straight to the death chamber?

What is an attorney to do in those circumstances? If we are to act in our client's best interest, can we ignore our client's wishes when it comes to trial strategy? We can all advise our clients to take a plea deal when the arrangement is in their best interest - even if they don't realize it; but we can't force them to take the deal.

What was the sin that Mr. English committed? Was it his trial strategy of conceding guilt in hopes of saving Mr. McCoy's life or was it his misunderstanding of the law? I would argue it is the latter. In this case the real problem was the attorney's incompetence. Whether or not one's trial strategy deprives the client of due process is a moot point when the attorney has no idea what the law is.

I think the larger questions to be answered are: to what extent are we mouthpieces for our clients and just how far can we go in being advocates for our clients? And when it comes to representing those accused of criminal acts, where does the concept of due process draw the line?

See also:

Amy Howe, "Argument analysis: Concern for death-row inmate's right likely to trump line-drawing worries," SCOTUSblog (1/17/2018)

School board members acting like petulant children

This is how democracy works in this country.



The Vermillion Parish school board met to determine whether to give the school superintendant a raise. Ms. Deyshia Hargrave had the nerve to question the school board as to why they were giving the superintendant a raise when teachers hadn't had a raise in years.

In the meantime class sizes have increased along with the duties of the teachers.

Instead of answering Ms. Hargrave's questions, the presiding officer of the school board decided to have her removed from the meeting. The officer, who showed himself to be nothing more than a lackey for the administration, roughed up Ms. Hargrave before arresting her on charges of remaining when forbidden and resisting arrest.

School board meetings are supposed to be open to the public. Members of the public in attendance have the right to ask questions and make comments during portions of meeting. Now I understand that many school board members would prefer to make their decisions in private where they are away from the glare of the light and can avoid taking responsibility. But that isn't how it's supposed to work.

The school board in Vermillion Parish - just like many school boards across this country - showed where their priorities were. It's a whole lot easier to raise the superintendant's salary that it is to explain to the public that taxes need to be raised to pay for school improvements and teacher salary increases.

But what happened in Vermillion Parish was uncalled for. Yes, board members who favored the pay increase - and the superintendant himself - certainly didn't want to be questioned about it. They expected everyone in attendance to just go along with the proposal. But when your response to being questioned by not just a member of the public, but your own employee, is to have her dragged out of a meeting and arrested, you have shown yourselves to be incapable of leadership.

This video should be broadcast as part of a civics lesson on how not to govern.

H/T David Begnaud

See also "Louisiana teacher handcuffed forcibly after asking questions at board meeting," The Guardian (1/9/2018)

Proof that the system works? Bullshit.

"I can't go back and do anything I should have been doing when I was 35, 38, 40 stuff like that." Glenn Ford (March 11, 2014)

For 26 years Glenn Ford sat on death row in Louisiana's infamous Angola penitentiary. For 26 years he sat in prison for the 1983 murder of Isadore Rozeman, a jeweler in Shreveport. For 26 years he steadfastly denied he was the killer.

On Tuesday State District Judge Ramona Emanuel signed a motion vacating the conviction based on new evidence that corroborated Mr. Ford's longstanding claims that he had nothing to do with the murder.

For those who say that the deterrent effect of the death penalty is eroded by the amount of time it takes the state to actually get around to killing inmates, that long delay saved the life of an innocent man. For those who claim that the death penalty allows for closure and that the delays associated with the state-sponsored killing of inmates force victims' families to relive their nightmare over and over, those delays saved the life of an innocent man.

For those who say the exoneration of Mr. Ford is proof that our criminal (in)justice system works, I say you don't have a fucking clue what you're talking about. Yes, the legal process prevented the State of Louisiana from killing an innocent man, but that same legal process allowed an innocent man to spend nearly three decades behind bars.

The exoneration of Mr. Ford is yet another indictment of our criminal (in)justice system. Whether his wrongful conviction was the result of incompetent legal representation, a prosecutor more interested in winning a case than seeing that justice was done or a judge who turned a blind eye to the the travesty unfolding in front of him, the point is that our system failed Mr. Ford. Our system failed his family. Our system failed the family of Isadore Rozeman.

While the state was busy depriving Mr. Ford of his freedom, the real killer escaped detection. While law enforcement and prosecutors played around with the evidence, the real killer walked the streets as a free man. Far from bringing about closure to Mr. Rozeman's family, the machinations of the state have opened up the old wounds and poured salt into them.

Witnesses lie. Witnesses forget. The police jump to conclusions. The police and prosecutors play hide the sausage with exculpatory evidence. Judges make rulings based on the upcoming election rather than the Constitution. All the while an innocent man sits at a table next to a lawyer and watches as his life is taken away from him.

Now I'm sure they do it everywhere else, but in Harris County prosecutors like to stand before a jury panel during voir dire and do everything in the power to reduce their burden of proof. They do their best to convince prospective jurors that it's fine to convict someone even if you have doubts about the evidence. The do their best to convince jurors that it's acceptable to guess about holes in the evidence. And the black-robed prosecutors judges play right along.

What the hell do they care? They're going home at the end of the trial and there are plenty of other cases on the docket. They don't have to live with the consequences of what they've done. They're just out there advocating for their position. Youth, hubris and the desire to win is a very dangerous combination.

But for Mr. Ford, this wasn't a game. This was his life. A life that has been lost. There is no way to replace the 30 years he lost to this false accusation. All of life's memories that we take for granted don't exist for Mr. Ford. Now he's left to pick up the pieces and try to start anew at age 64.

Mr. Ford is entitled to $330,000 for his years behind bars - that's the statutory maximum in Louisiana. That's not enough to reimburse him for the years he lost. But even if the amount he was entitled to was limitless, no one could ever compensate Mr. Ford for what he went through.

A heinous crime was committed in 1984 and the State of Louisiana and our criminal (in)justice system must be held to answer for it.

Update: Dying a free man

Herman Wallace died yesterday.

He died a free man after spending over 40 years in solitary confinement in the Louisiana penitentiary known as Angola.

A federal judge ordered him released earlier in the week. Even then Mr. Wallace had to fight the power of the state as officials refused to release him until the judge threatened to hold them in contempt.

Although the victory was all too short, it was a victory nonetheless.

Forty years of solitude in Angola

For 40 years, Herman Wallace sat in a tiny cell for 23 hours a day in the Louisiana State Penitentiary in Angola. He spent those years in solitary confinement after he and two other inmates, Robert King and Albert Woodfox, were convicted of killing a prison guard in 1973. It was a crime all three deny committing.

In 1967 Mr. Wallace was convicted of armed robbery and sentenced to 50 years behind bars. While in prison he helped start up the first chapter of the Black Panther Party behind bars. Shortly thereafter a prison guard was murdered and Mr. Wallace, along with Mr. King and Mr. Woodfox, found themselves faciug trial for murder.

The Angola Three, as they are known, were all placed in solitary confinement. Mr. King was released from prison in 2001 while Mr. Woodfox is still in solitary confinement.

Earlier this year Mr. Wallace was diagnosed with liver cancer and it is believed he has but a few days to live. His supporters petitioned the state for compassionate release - but their pleas fell on deaf ears.

Yesterday Federal district judge Brian Jackson overturned Mr. Wallace's 1974 conviction on the grounds that his right to due process was violated when women were excluded from the jury that convicted him. Judge Jackson ordered the State of Louisiana to release Mr. Wallace at once. An ambulance was sent to the prison.

However, showing the bull-headed stubbornness of a prosecutor who refuses to acknowledge that a conviction was unjust, East Baton Rouge District Attorney Hillar Moore challenged the judge's order and the state refused to release Mr. Wallace.

For the State of Louisiana it was a fight to see that Mr.Wallace didn't die as a free man. It wasn't enough that he's was locked up in a tiny cell for over 40 years. It wasn't enough that he was denied meaningful contact with the outside world. It wasn't enough that Mr. Wallace's life is almost over. The State of Louisiana was bound and determined to take not only Mr. Wallace's life, but his dignity as well.

But, despite their efforts to keep see Mr. Wallace die in prison, the state failed. Late last night Herman Wallace was released from the Louisiana State Penitentiary. The litigation surrounding his case will continue after he has taken his final breath.

Herman Wallace will die a free man.



See also:

"Cancer-stricken Anglola 3 prisoner Herman Wallace given just days to live after 42 years in solitary," Democracy Now! (Sept. 30, 2013)

Herman's House: The Film

Busted on a Huffy

Under the Texas Penal Code, a person commits the offense of driving while intoxicated if they operate a motor vehicle after having lost the normal use of their mental or physical faculties due to the consumption of alcohol, a drug, or some combination of the two. A motor vehicle is "a device in, on or by which a person of property is or may be transported or drawn on a highway..."

So, in the Lone Star State it's acceptable to get hammered and pedal down the road on your bike. You might have a hard time keeping your balance, but at least you can't get tagged with a DWI charge.

But try doing that in Louisiana and it's a different story. According to this story from Shreveport's KTBS, Robert Earl Batton found out that Louisiana truly is in a different world as he managed to get arrested for driving while intoxicated while riding his bike. According to the Section 14.98 of the Louisiana Code, operating any means of conveyance while intoxicated is a crime.

So just remember the next time you're down in the Big Easy that you can walk around the French Quarter and get as liquored up as you wish -- just don't get on a bicycle afterward.

The ordinary rules don't apply for DWI

A ruling by Louisiana's 2nd Court of Appeals has expanded the arrest power of police officers outside their jurisdictions. Prior to the court's ruling, an officer outside his jurisdiction was considered a civilian and could only make a "citizen's arrest" for a felony.

A private person may make an arrest when the person arrested has committed a felony, whether in or out of his presence. - Art. 214, Louisiana Code of Criminal Procedure

At trial, in two separate cases, police officers outside their jurisdiction stopped motorists they believed were driving while intoxicated. In one case, State v. Stapa, an officer noticed a motorist weaving between the fog line and the center line and called a state trooper. The state trooper told the officer to "light up" the motorist but to stay in her car until he arrived. In the other case, State v. Williams,  an officer observed the motorist driving and stopped him.

In both cases the Court acknowledged that the officers did not have the authority to make the stops -- in fact, the trial courts, in both cases, suppressed all evidence attained as a result of the illegal stops. The Louisiana court quoted from a dissent by Chief Justice Roberts to a denial of ceriorari in which Roberts wrote that "[t]he imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases."

The Chief Justice and Justice Scalia went on to write:

"Drunk driving is always dangerous, as it is occurring. This Court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances." Virginia v. Harris, 130 S.Ct. 10 (2009).

So there you have it. The Chief Justice of the Supreme Court and "Mr. Original Intent" think that your constitutional protections are situational and shouldn't apply equally in all cases. In the two Louisiana cases, the Louisiana Court also expressed its belief that statutes protecting citizens from overzealous law enforcement don't always mean what they purport to mean (keeping in mind that Louisiana is not a common law state).

Interview with a vampire

Early warning radar indicates that vampires may be descending on New Orleans this Memorial Day Weekend. These vampires are thought to be driving patrol cars and wearing uniforms with shiny badges. Motorists are warned to be on the lookout for vampires while driving the streets of Jefferson Parish.

Jefferson Parish prosecutors aren't even making an attempt to pretend their plan is anything less than another assault on civil liberties.

When suspected DWI offenders are brought into the lockup over Memorial Day weekend, if they refuse to take the breath test, a judge will be ready to review evidence and sign off on a search warrant, giving officials the authority to draw blood from the suspect regardless of whether they agree.

Although no one is credited with making that statement, it is pretty clear from the article that Norma Broussard of the DA's Office is the source. Note that the judge isn't there to review the evidence to determine if there was reasonable suspicion to stop or probable cause to arrest, the judge is there to sign off on a warrant so that police can draw blood forcibly from motorists accused of committing a misdemeanor one step up from a traffic ticket.

And why do Jefferson Parish prosecutors want blood? Because they want to make it easier to infringe upon the freedom and liberty of their fellow citizens. If judges and juries want blood or breath tests, then by golly, we're going to give it to them -- civil liberties be damned.