Louisiana

Louisiana

2018 Midterm Elections: Governors in Moratorium States Re-Elected, Controversial California D.A. Ousted

The results of the November 6, 2018 mid-term elections reflected America's deeply divided views on capital punishment, as voters elected governors who pledged not to resume executions in the three states with death-penalty moratoriums, defeated an incumbent who tried to bring back capital punishment in a non-death-penalty state (click on graphic to enlarge), and re-elected governors who had vetoed legislation abolishing capital punishment in two other states. Continuing a national trend, voters in Orange County, California ousted their scandal-plagued top prosecutor, marking the ninth time since 2015 that local voters have replaced prosecutors in jurisdictions with the nation's largest county death rows.

In the three states with Governor-imposed death-penalty moratoriums, candidates who said they would continue execution bans or work to eliminate the state’s death penalty won easily. Tom Wolf, the Democratic governor of Pennsylvania who imposed the state’s moratorium on executions in 2015, was re-elected by with 57.6% of the vote. His challenger, Scott Wagner, who had promised to resume executions and had advocated a mandatory death penalty for school shootings, trailed badly with 40.8% of the vote. Oregon's incumbent Democratic governor Kate Brown, who continued the state’s death-penalty moratorium instituted in 2011 by then-governor John Kitzhaber, won re-election in a six candidate field with 49.4% of the vote, five percentage points higher than her Republican challenger Knute Buehler. In Colorado, Democratic congressman Jared Polis, who campaigned on the repeal of the state’s death penalty, won the governorship with 51.6% of the vote, outpacing Republican state treasurer Walker Stapleton, who received 44.7% of the vote. Democrats also took control of both houses of the Colorado legislature, increasing the likelihood that legislation to abolish the death penalty will be considered in the upcoming legislative session. Illinois Republican Governor Bruce Rauner suffered an overwhelming election defeat at the hands of venture-capitalist J.B. Pritzker. Trailing badly in the polls, Rauner tried in May 2018 to condition passage of gun control legislation on reinstatement of the state’s death penalty. Pritzker outpolled Rauner by 54.0% to 39.3%.

On the other hand, two governors who prevented death-penalty repeal bills from going into effect in their states also won re-election. Nebraska's Republican Governor Pete Ricketts, who vetoed a bipartisan bill to abolish the state's death penalty in 2015 and then, after the legislature overrode his veto, personally bankrolled a successful state-wide referendum in 2016 to block the repeal, cruised to re-election with 59.4% of the vote. New Hampshire Republican Governor Chris Sununu, who vetoed the state’s death-penalty repeal bill in March 2018, won re-election with 52.4% of the vote. In Florida, Republican Ron DeSantis won the governorship against Democratic candidate Andrew Gillum, who had pledged, if elected, to suspend executions in Florida until he was sure the death-penalty system was nondiscriminatorily applied.

Local voters in Orange County replaced District Attorney Tony Rackauckas with a political rival, county supervisor Todd Spitzer. Rackauckas has been embroiled in a scandal involving the secret use of prison informants to obtain or manufacture confessions from suspects and then stonewalling investigation of the multi-decade illegal practice.  As of January 2013, Orange County had the seventh largest death row of any county in the U.S., and since then, it has imposed the fourth most death sentences of any county. 

Death Off the Table for Four Former Death-Row Prisoners, as Death Row Continues to Shrink Nationwide

In a period of less than one week, four former death-row prisoners in four separate states learned that they no longer face execution, contributing to the continuing decline in the number of people on death rows across the U.S. The result of the unrelated court proceedings—a resentencing hearing in Pennsylvania, a non-capital grand jury indictment in Louisiana, a prosecutor’s decision to drop death in Indiana, and a court ruling on intellectual disability in Alabama—illustrate the ongoing erosion of the death-row population in America, which has fallen in size in each of the past 17 years. On September 10, 2018, Daniel Saranchak (pictured, left) was resentenced to life without parole in Schuylkill County, Pennsylvania, following the reversal of his death sentence by a federal court in October 2015. That court said Saranchak had been provided ineffective representation in the penalty phase of his original trial in 1994 and granted him a new sentencing hearing. In November 2000, Saranchak came within 45 minutes of being executed before receiving a stay. Three days after Saranchak’s resentencing, a Jefferson Parish, Louisiana grand jury returned a non-capital indictment against Teddy Chester (pictured, middle left), who had been sentenced to death in 1997. Chester was granted a new trial on June 11, 2018 based on evidence of his counsel’s failure to challenge the prosecution case against him and DNA evidence that had not been presented to Chester’s trial jury suggesting that he is not the killer. Chester and his co-defendant, Elbert Ratcliff, each claim that the other shot cab driver John Adams in order to rob him. The grand jury indicted Chester for second-degree murder, which carries an automatic life sentence if convicted. Ratcliff was previously convicted of second-degree murder. On September 14, a St. Joseph County, Indiana trial judge approved the prosecution’s motion to remove the death penalty as a possible punishment against Wayne Kubsch (pictured, middle right). Kubsch will face a maximum sentence of life without parole at his third trial in a 1998 triple homicide. Kubsch maintains his innocence, and his second conviction was overturned because “critical evidence” was withheld. The victims’ families supported the prosecution’s decision to seek a life sentence. “I believe this is the right decision,” said Diane Mauk, mother of victim Beth Kubsch. “I feel that in the state of Indiana it would be another 15 years or more before an execution would take place, if it ever happened. ... It’s time to get justice for our families.” And also on September 14, the Alabama Supreme Court found death-row prisoner Anthony Lane (pictured, right) ineligible for the death penalty because of intellectual disability, vacated his death sentence, and directed the trial court in Jefferson County to resentence Lane to life without parole. The Alabama state courts had previously rejected Lane's claim of intellectual disability, but had applied an unconstitutional and scientifically unsupported definition of intellectual disability in reaching that conclusion. The U.S. Supreme Court reversed that ruling in 2015 and returned the case to the state courts to decide the issue using an appropriate standard.

A Bureau of Justice Statistics brief on May 20, 2017 and DPIC's year end reports in 2016 and 2017 have shown that removals from death row—mostly in the form of resentencings—have outstripped new death sentences every year since 2001.

Another Louisiana Capital Conviction Overturned for Lawyer Conceding Guilt Over Client’s Objection

The Louisiana Supreme Court has unanimously overturned the conviction of death-row prisoner Brian Douglas Horn (pictured), after Horn’s lawyer conceded—over Horn’s explicit objection—that his client had killed and also may have molested 12-year-old Justin Bloxom. The September 7, 2018 ruling is the latest fallout in Louisiana from the U.S. Supreme Court’s decision earlier this year in McCoy v. Louisiana, which declared that such concessions violate a defendant’s Sixth Amendment right to counsel. Prior to and during trial, Horn told his lawyer and filed motions with the court saying that he did not want to concede guilt or admit he committed the crime. Horn’s lawyer ignored his client’s objections, telling the jury during closing argument, “We know that Brian Horn killed Justin Bloxom.… I’m not asking you to let him walk the streets. I’m not asking you to find him ‘not guilty.’” Instead, counsel suggested that Horn was guilty of either second-degree murder or manslaughter, neither of which carry the death penalty as a possible punishment. Louisiana Chief Justice Bernette Johnson wrote that this concession denied Horn the assistance of counsel in his defense and was a “structural error” that required overturning the conviction. “While conceding guilt in the hope of avoiding a death sentence may be a reasonable strategic decision in some cases, the decision to do so belongs to the defendant,” she said. The ruling echoed the language of Justice Ruth Bader Ginsburg's 6-3 opinion for the Court in McCoy in which she stated, “With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” In dissent, Justice Samuel Alito likened the issue to “a rare plant that blooms every decade or so. Having made its first appearance today, the right is unlikely to figure in another case for many years to come.” However, a friend-of-the-court brief filed by the Louisiana Association of Criminal Defense Lawyers in connection with McCoy’s case described a pattern of Louisiana state court rulings that have permitted capital defense counsel to concede guilt over their clients’ express objection or required capital defendants to represent themselves to avoid having their lawyer concede guilt. In a media statement at the time of the McCoy decision, his lawyer, Richard Bourke, said, “[w]hile rare in the rest of the country, ... Mr. McCoy’s was one of ten death sentences imposed in Louisiana since 2000 that have been tainted with the same flaw.” On June 25, in another of those cases, the U.S. Supreme Court vacated the Louisiana Supreme Court’s decision upholding the conviction of death-row prisoner Jeffrey Clark and returned the case to the state court for reconsideration in light of McCoy. Prosecutors in Horn’s case must now decide whether to appeal the decision and whether to again seek the death penalty if they retry the case.

Louisiana Death-Penalty Case Tainted by Judge’s Conflict of Interest Returns to U.S. Supreme Court

A Louisiana death-row prisoner is asking the U.S. Supreme Court to review the constitutionality of his conviction and death sentence a second time based upon allegations that the trial judge had an undisclosed conflict of interest. In his petition to review his conviction for a triple-murder involving the death of a New Orleans police officer, Rogers Lacaze (pictured) argues that his right to due process was violated when his trial judge, Frank Marullo, failed to disclose that the judge had signed a court order releasing the probable murder weapon to Lacaze's co-defendant and that Marullo was a witness in a New Orleans Police Department investigation into the circumstances in which the weapon had been released. Judge Marullo then won re-election by a margin of 51%-49%, after running a campaign saying he was “tough on crime” and had sentenced “Lacaze to die by lethal injection.” Lacaze was convicted of a triple murder involving a 9mm gun his co-defendant—police officer Antoinette Frank—had obtained from the New Orleans Police Department property and evidence room shortly before the killing. The order releasing the gun to Officer Frank bore Judge Marullo's signature, and Marullo presided over Lacaze and Frank's trials. Before being assigned to the trials, Marullo was interviewed by police investigating the crime. The judge claimed his signature had been forged, but the officer in charge of the evidence room said he had personally given the form to Marullo's clerk, who took it into chambers and returned with the signed order. Marullo subsequently refused a police request for a second interview on the grounds that he was presiding over the trials. Marullo did not inform Lacaze of his connection to the murder weapon, even after Lacaze testified that he was not involved in the murders, but that Frank had told him she was going to get a gun from the evidence room. When Lacaze's attorneys later learned of Marullo's connection to the weapon, they filed an appeal challenging his failure to recuse himself. The Louisiana Supreme Court dismissed the appeal. In 2017, Lacaze petitioned the U.S. Supreme Court for the first time, and the Court vacated the Louisiana Supreme Court's decision and remanded the case for further review based upon its March 2017 decision in Rippo v. Baker, which found “an unconstitutional potential for bias” requiring recusal when a trial judge was being criminally investigated by the same prosecutor's office that was prosecuting the defendant. On remand, the Louisiana court once again rejected the appeal, saying that Lacaze had not shown a “probability of actual bias” by Judge Marullo against any specific party in the case. Lacaze's petition is supported by friend-of-the-court briefs by ten former state and federal trial and appellate court judges, experts in judicial ethics and judicial elections, and more than thirty associations of criminal defense lawyers. The amicus brief of the former judges warns that the Louisiana court's decision “provides license not simply to preside over a capital murder case despite personal connections to the underlying facts—but to withhold disclosure of those connections entirely.” Allowing this type of “startling” judicial conflict of interest, they write, “threatens the legitimacy of not just Mr. Lacaze’s conviction and sentence, but of the administration of justice.” Writing for the American Constitution Society blog, Lawrence J. Fox, counsel of record on the brief filed by the Ethics Bureau at Yale Law School, said “well-established constitutional due process requirements make clear that Judge Marullo should have recused himself” from the case. “Fair and impartial judges are the foundation stone of fair courts, fair trials, and just results,” Fox wrote. “There’s too much at stake in Mr. Lacaze’s case for the U.S. Supreme Court not to intervene.” Briefing in the case was completed on August 27. The Supreme Court is scheduled to rule later this month on whether to hear the case.

Court Order: No Executions in Louisiana For Another Year

A Louisiana federal court judge has ordered that executions in the state be stayed for at least another year. On July 16, 2018, in proceedings brought by Louisiana death-row prisoners challenging the state's lethal-injection protocol, U.S. District Court Judge Shelly Dick granted a request by state officials to extend by one year the temporary stay of execution that has been in effect in Louisiana since 2014. Jeffrey Cody, the state's lawyer in the case, told the court that continuing the lethal-injection litigation now would be "a waste of resources and time." He asked for the one-year extension "because the facts and issues involved in this proceeding continue to be in a fluid state." The request for an extension has triggered a partisan dispute among Louisiana state elected officials. Jeff Landry, the state's Republican Attorney General, blamed Democratic Governor John Bel Edwards for Louisiana's inability to execute prisoners and for facilitating a court ruling further delaying executions. In a July 18 letter to the Governor that Landry simultaneously distributed to the media, the attorney general said he was withdrawing his office from participating in the lethal-injection lawsuit and would no longer represent the Department of Corrections in that case. Landry claimed that Edwards was "unwilling[ ] to proceed with any executions" and called that "the biggest obstacle" to resuming executions in the state. Edwards called the attorney general's actions "political grandstanding," saying "[h]e issued this release today without trying to contact me at all." He said, "[i]n the one year since the state last requested a stay, which the Attorney General signed on and supported at the time, nothing has changed – the drugs are not available and legislation has not passed to address concerns of drug companies or offer alternative forms of execution." Louisiana currently authorizes the use of a one-drug protocol of the anesthetic pentobarbital, with a backup two-drug method consisting of the sedative midazolam and the painkiller hydromorphone. According to Department of Corrections spokesperson Ken Pastorick, the state does not have a supply of any of those drugs. The latest stay marked the fourth time since 2015 that the state has requested a delay of the lethal injection litigation. By the time Judge Dick's order expires on July 18, 2019, it will have been nearly ten years since the last execution in Louisiana, which was carried out on January 7, 2010. Bobby Jindal, a Republican, was governor from 2010 until January 2016, after the first federal stay of execution was in effect. 

Louisiana Prisoner Alleges Prosecutor Got Death Verdict By Coercing Witness, Presenting Fabricated Testimony

Michael Wearry, a Louisiana prisoner whose conviction and death sentence were overturned by the U.S Supreme Court in 2016 because prosecutors withheld exculpatory evidence, has filed suit against Livingston Parish District Attorney Scott Perriloux (pictured) and former Sheriff's Deputy Marlon Kearney Foster based upon new evidence that they deliberately fabricated testimony against him. Wearry's complaint charges that the Louisiana officials "knowingly and deliberately fabricated" testimony from a troubled adolescent, Jeffery Ashton and coerced Ashton "to falsely implicate Wearry in the homicide of Eric Walber." The lawsuit says Wearry first learned that Perriloux and Foster had fabricated Ashton's testimony during the course of preparing for Wearry's re-trial, when his defense team located and interviewed Ashton and "Ashton told Wearry’s lawyers about the falsification of his witness accounts." Wearry was convicted and sentenced to death in 2002, although no physical evidence linked him to the murder. His alibi witnesses testified that he was at wedding reception 40 miles away in Baton Rouge at the time of the murder. The U.S. Supreme Court has described the case against Wearry as "a house of cards." The prosecution case relied heavily on the testimony of Sam Scott, a jailhouse informant, whose story changed so dramatically over the course of four different statements that, according to the Supreme Court, by the time of trial "his story bore little resemblance to his original account." Police records that prosecutors withheld from the defense at trial revealed that Scott had may have had a personal vendetta against Wearry, having told another prisoner he wanted to "make sure [Wearry] gets the needle cause he jacked over me." Prosecutors also failed to disclose that they had offered another witness a reduced sentence for an unrelated conviction in exchange for his testimony against Wearry, and then lied to the jury that the witness had "no deal on the table." Wearry's lawsuit concerns allegations of misconduct involving the testimony of Jeffrey Ashton, who was ten years old at the time of the murder and fourteen when he testified at Wearry's trial that he had seen Wearry throw the victim's cologne bottle into a ditch and get into the victim's car. He now says he was attending a festival on the night of the murder and had never seen Wearry before the trial. "Ashton was subject to juvenile court proceedings at the time, and was vulnerable to intimidation by authorities such as Perrilloux and Foster," the lawsuit says. In an affidavit, Ashton says he was "forced" to provide false testimony. "I went along with it because I was just ten years old. I was scared," he said. Jim Craig, Wearry's attorney, called the alleged misconduct "very disturbing," and said, "[t]he abuse of power by District Attorney Perrilloux and Mr. Foster is an outrage that should disturb anyone who believes in justice." He added that he believes the case may have implications for other cases handled by Perriloux, saying, "I think the integrity of this and other cases in that district is at stake and we expect this to be a very hard fought case. We are confident that what we have filed is correct and truthful." District Attorney Perrilloux called the allegations that he coerced testimony from Ashton "ridiculous."

Former Louisiana Death-Row Prisoner Released on Plea Agreement, Amid Evidence of Innocence, Misconduct

More than twenty years after being convicted and sentenced to death for a murder he has long said he did not commit, Corey Williams (pictured, center, with his defense team) walked free from prison in Louisiana on May 22, 2018. The deal was bittersweet for Williams, for despite the evidence of innocence, he had to agree to plead guilty to lesser charges of manslaughter and obstruction of justice to obtain his freedom. In a statement released to the media, Amir Ali (pictured, left), Williams' lead counsel in his U.S. Supreme Court proceedings, said: “Imagine your child leaving to hang out with friends, and then losing him or her for twenty years. No one can give Corey back the time that he wrongfully spent behind bars, away from his family and friends. Today, we ensure this tragedy ends here—Corey can finally go home." Williams, who is intellectually disabled, was just sixteen years old when he was arrested for the murder of a pizza deliveryman in Caddo Parish, Louisiana. Police interrogated him overnight, eventually leading him to confess, despite knowing that he was intellectually disabled and therefore more susceptible to confessing falsely. Williams' attorneys said, "His confession was brief, devoid of corroborating details. Having just assumed responsibility for a homicide, Corey told the officers, 'I'm tired. I'm ready to go home and lay down.'" Witnesses reported seeing several older men rob the victim. Fingerprints from one of those men were found on the murder weapon, and the victim's blood was found on the clothing of another man. A third possible suspect, Chris Moore, nicknamed “Rapist,” was the only witness who testified against Williams. Prosecutors withheld recordings of witness interviews that supported Williams' innocence claims. Those recordings showed that police suspected Moore and the two other men were trying to frame Williams. Williams was sentenced to death, but his death sentence was vacated six years later after the U.S. Supreme Court declared the use of the death penalty against people with intellectual disability to be unconstitutional. Hugo Holland, who along with Dale Cox, is responsible for 75% of death sentences imposed in Louisiana from 2010-2015, prosecuted Williams' case. He was later investigated for withholding evidence in a separate case, and had to resign his post due to other misconduct. At the time the plea deal was made, Williams had an appeal pending before the U.S. Supreme Court, seeking review of his case based upon the prosecution's improper withholding of exculpatory evidence. Forty-four former state and federal prosecutors and Department of Justice officials—including former U.S. Attorney General Michael Mukasey—filed a brief in support of Williams' claim, urging the U.S. Supreme Court to grant him a new trial. The plea deal ends the litigation of that case. Ali said, “The District Attorney’s decision not to defend the tragic decisions of his predecessors is commendable. Corey’s release is vindication that he was wrongfully targeted years ago by prosecutors who had no regard for truth or justice.”

Supreme Court Sides With Death-Row Prisoner Whose Trial Lawyer Told Jury He Was Guilty

The United States Supreme Court has granted a new trial to Louisiana death-row prisoner Robert McCoy (pictured), whose lawyer admitted his guilt despite McCoy’s “adament” and “vociferous” insistence that he was innocent. Facing what counsel believed was overwhelming evidence of guilt and hoping to persuade the jury to spare McCoy’s life, defense lawyer Larry English told jurors his client had “committed three murders. . . . [H]e’s guilty.” In a 6-3 opinion for the Court on May 14, Justice Ruth Bader Ginsburg wrote: “With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” Justices Alito, Thomas, and Gorsuch dissented. At trial, McCoy’s defense counsel informed the jury that it could reach no other conclusion but that McCoy—who was charged with murdering the son, mother, and stepfather of his estranged wife—“was the cause of these individuals’ death,” even though McCoy had consistently maintained his innocence and repeatedly objected to counsel’s strategy. The trial court denied McCoy’s objections. On appeal, the Louisiana Supreme Court affirmed the conviction, ruling that a lawyer has the authority to concede guilt against the wishes of his client because counsel “reasonably believed that admitting guilt” would be the “best chance” to avoid a death verdict. The U.S. Supreme Court reversed. Justice Ginsburg explained that “the ‘assistance’ of counsel” guaranteed by the Sixth Amendment does not require a defendant to “surrender control entirely to counsel. ... Some decisions,” she wrote, “are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.” Here, the Court found that McCoy’s objective—to maintain that he was innocent of murdering his family—was irreconcilable with trial counsel’s objective—to avoid a death sentence. “When a client expressly asserts that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts,” the Court held, “his lawyer must abide by that objective and may not override it by conceding guilt.” The dissent disagreed that trial counsel had conceded McCoy’s guilt by telling the jury that his client killed the victims, saying that counsel had stressed that McCoy lacked the intent to kill necessary for first-degree murder and that McCoy therefore was guilty only of second-degree murder. It also minimized the need for the ruling, describing the problem as “a rare plant that blooms every decade or so” and one that was unlikely to recur. In April 2017, the Louisiana Association of Criminal Defense Lawyers had filed a brief supporting McCoy’s petition, pointing to a pattern of cases in which Louisiana state courts had resolved disagreements between capital defendants and their lawyers in whatever manner had been most detrimental to the defendant. “Rather than a principled and consistent commitment to the autonomy and dignity of capital defendants,” the defense lawyers wrote, “the Louisiana Supreme Court has adopted a set of rules that ameliorates always to the benefit of the state, and never to the defendant.” In a statement released to the media, McCoy’s lawyer, Richard Bourke, said “The ruling restores in Louisiana the constitutional right of every individual to present their defense to a jury. While rare in the rest of the country, ... Mr. McCoy’s was one of ten death sentences imposed in Louisiana since 2000 that have been tainted with the same flaw.”

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