Louisiana

Louisiana

Justices Appear Sympathetic to Louisiana Death-Row Prisoner Whose Trial Lawyer Conceded Guilt

The justices of the U.S. Supreme Court appeared to be favoring arguments presented by Louisiana death-row prisoner Robert McCoy (pictured), who was convicted and sentenced to death after his lawyer, in the face of repeated instructions from his client to argue his innocence, instead told the jury that McCoy had killed three family members. McCoy's trial lawyer, Larry English, said he ignored his client's instructions and conceded guilt hoping jurors would then vote against the death penalty because McCoy had "serious emotional issues" that prevented him from "function[ing] in society" or "mak[ing] rational decisions." News coverage of the January 17 oral argument in McCoy v. Louisiana reports that the justices were in "broad agreement" with McCoy's position and "seemed sympathetic to his plight." The question debated during the hour-long Supreme Court argument was "whether the right to a lawyer that’s guaranteed by the Constitution is meaningful if, even with the best intentions, he can ignore his client’s wishes." Seth Waxman, former U.S. Solicitor General under the Clinton Administration, argued on behalf of McCoy, saying that "when a defendant maintains his innocence and insists on testing the prosecution on its burden of proof" then the Sixth Amendment right to counsel "prohibits a trial court from permitting the defendant's own lawyer, over the defendant's objection, to tell the jury that he is guilty." The state's attorney, Louisiana Solicitor General Elizabeth Murrill, argued for what the state charcterized as a "narrow exception" that would allow a defense lawyer in a capital case to override the client's wishes and admit the client's guilt if the lawyer believed that was necessary to save the client's life. But even Justices Gorsuch and Alito—two of the Court's most conservative justices—seemed to agree in some respects with McCoy's position. Justice Gorsuch asked Murrill why the error at trial was not "a total denial of the assistance of counsel" and said that the right to counsel included "not to have an agent of the state assist the state in prosecuting you." Justice Alito expressed exasperation that the case had even reached this point, questioning the trial court decisions finding McCoy competent to stand trial and refusing to allow English to withdraw from the case. "[I]f somebody like McCoy really sincerely believes that he did not commit these physical acts, but it was all done by—as part of an elaborate conspiracy, is he—is he capable of assisting in his own defense?," Alito asked. Justices Breyer and Kagan voiced sympathy for English, who they believed was trying to save McCoy's life. Justice Kennedy, often the swing vote in death-penalty cases, asked the Louisiana Solicitor General a single line of questions: was it Louisiana's position that, if "a defendant [in a capital case] wants to plead not guilty, the defense attorney can plead guilty if the defense attorney thinks that's the best way to avoid the death penalty?" When the solicitor general said that a lawyer could not do that, Kennedy followed up, asking "How is that proposition any different from what really happened in this case?" A decision is expected by the end of June 2018.

Underfunding of Capital Defense Services in Louisiana Leaves Defendants Without Lawyers

Facing court challenges for underfunding the state's public defender system and pressure from prosecutors angered by the zealous capital representation provided in the state by non-profit capital defense organizations, the Louisiana legislature enacted a law last year redirecting $3 million to local public defenders that had previously been allocated to fund capital defenders. As it has nearly every winter, however, the Louisiana public defender system has run out of money, and the underfunded capital defense offices, already at full capacity, say they cannot take any more cases. As a result, The Marshall Project reports, "[a]t least 11 Louisiana defendants facing the death penalty — including five who have already been indicted — have no defense team and may not have one until new money becomes available in July." And, with Louisiana law requiring prosecutors to seek the death penalty in murder cases unless the prosecutor explicitly decides otherwise, the wait list is expected to grow. Ben Cohen, an attorney with the non-profit The Promise of Justice Initiative likens the situation to “a conveyer belt" of murder cases. He said, "we’re grabbing them off as they come. But with the funding cuts, they essentially pulled some of us away from the line, and now the cases are piling up and crashing to the floor.” “They robbed Peter to pay Paul,” said Jay Dixon, chief defender for the Louisiana Public Defender Board. “We’re still in crisis; it’s just a different crisis ... [and] we could be facing an even greater crisis next year." Hugo Holland, a death-penalty prosecutor who doubles as chief lobbyist for the Louisiana District Attorneys Association, suggests that the capital defenders should lower their standards in providing representation, taking more than the five cases per year recommended by the American Bar Association standard adopted by the state Public Defender Board in 2007. He also argues that the defenders should back off of the ABA-recommended standard of a defense team of two lawyers, a fact investigator, and a penalty-phase mitigation specialist. He rails against the capital defenders as "boutique law firms" whom he believes are "intentionally thwarting the administration of justice." The defense lawyers, he says, should "do [their] f***ing job and provide anyone represented by [them] constitutional representation." Cohen says Louisiana has placed capital-defense lawyers "an awful moral conundrum." It is, he says, "[l]ike a doctor who has to perform 12 heart surgeries in a day, but then his staff gets cut in half. He can either do a crappier job on these life-or-death procedures, or he can take fewer of them and make the others wait." Prior to the new law, the Louisiana Public Defender Board had spent about 28% of its annual budget on capital cases, totaling about $9.5 million two years ago and 8.5 million last year. Louisiana's death penalty has been plagued with problems. Former Louisiana Supreme Court Chief Justice Pascal Calogero has characterized prosecutorial misconduct in capital cases as "endemic and persistent." There are equally persistent allegations of racism in its administration of capital punishment. And since 2000, courts have reversed 96% of the Louisiana death sentences that have completed appellate review. Eleven prisoners wrongly convicted and sentenced to death in Louisiana have been exonerated, the most recent exoneration occurring in April 2017. New Orleans capital defense attorney Nick Trenticosta says that if the state wants to have the death penalty, it has to pay for it. "You can’t try to put a man to death on the cheap."

Louisiana Justice Recused From “Angola 5” Death-Penalty Appeal After Radio Interview Commenting on the Case

Louisiana Supreme Court Justice Scott Crichton (pictured) will not participate in deciding the appeal of a prisoner sentenced to death in a controversial, high-profile prison killing, after Crichton publicly commented on the case during an appearance on a local radio program. On November 21, Crichton recused himself from the pending appeal of death-row prisoner David Brown, one day after Brown's lawyers sought his removal from the case because of Crichton's on-air comments about the "Angola 5" case and the judge's derrogatory references to capital appeals. Brown is one of the five men charged in the murder of prison guard, Capt. David Knapp at the Angola State Penitentiary in 1999. Crichton's "notice of self-recusal" provided no explanation for his decision. However, Brown's lawyers had argued in their recusal motion that, during an October 23 talk-radio appearance on the KEEL Morning Show with Robert and Erin, "[Crichton] and his interviewer agreed that inmates with life sentences 'have nothing to lose' and that murders by prisoners, like 'the Angola 5 in South Louisiana,' prove that the death penalty is a deterrent because inmates who have been executed cannot then harm prison guards." The lawyers also argued that Crichton had expressed personal opinions about the death penalty both on the October 23 program and in other recent radio interviews that violated the Code of Judicial Conduct and disqualified him participating in Brown's death-penalty appeal. In addition to his comments about the Angola 5 case, Justice Crichton—a former death-penalty prosecutor and judge in Caddo Parish, where the rate of death sentences per homicide was nearly 8 times greater between 2006 and 2015 than in the rest of Louisiana—disparaged death-penalty appeals, saying that it "boggles my mind" when an "inmate who has committed capital murder who is on death row is begging for his life. Think about the fact that the victim gets no due process." In 2014, a trial court had reversed Brown's death sentence after finding that Hugo Holland—another former Caddo Parish prosecutor who had been appointed as a special prosecutor to handle the case—had withheld evidence that a prisoner interviewed in connection with the murder had told prosecutors that two of the five men charged in the killing had admitted to him that only they had committed the murder. The Louisiana Supreme Court later reinstated Brown's death sentence, ruling that the suppression of this evidence was not "material" to the jury's sentence. Crichton had complained in previous appearances on the talk show about the appeal process in the death-penalty case of Nathaniel Code, against whom Crichton had obtained a death sentence in the 1980s: “He’s been on this crazy post-conviction relief status,” Crichton said. “He had 18 years of [post-conviction appeals] in the state system, which is absurd, obscene, and hideous.”

John Thompson, Death-Row Exoneree and Social Justice Activist, Has Died

Death-row exoneree John Thompson (pictured), described by Innocence Project New Orleans director Emily Maw, as "an amazing force in the world" and a "national legend," died October 3 at a New Orleans-area hospital after suffering a heart attack. Exonerated in 2003, he had survived a corrupt Orleans Parish prosecution, seven death warrants, and an imminent execution by the state of Louisiana for a murder he did not commit. Following his release, Thompson became a national advocate for criminal justice reform and founded Resurrection After Exoneration, a re-entry and support program for released prisoners. Thompson's odyssey towards exoneration began when he was wrongly charged with, and wrongly convicted of, two crimes that took place a few months apart in 1984—a carjacking and the unrelated murder of New Orleans hotel executive Ray Liuzza, Jr. He was wrongly sentenced to death for Liuzza's murder. Just 30 days from an execution date, an investigator in his case discovered a report about exculpatory blood evidence on the carjacking victim's clothes that the state had never revealed. The blood did not belong to Thompson and both the carjacking and murder cases against him soon unraveled.  A former prosecutor revealed that one of the prosecutors who tried Thompson, Gerry Deegan, had confessed on his death bed in 1994 that he intentionally hid the blood evidence. Thompson won a new trial and was acquitted and released in 2003. He had spent 18 years in prison (14 years on death row), and lost his grandmother and father during that time. Thompson was prosecuted by the Orleans Parish Assistant District Attorney's office during the administration of District Attorney Harry Connick, Sr. His lead prosecutor, James Williams—who had a replica electric chair on his desk and framed photographs of the men he had sent to death row on his office wall—told a reporter in 2007, “There was no thrill for me unless there was a chance for the death penalty.” 11 of the 36 men sentenced to death during Connick’s tenure had their convictions overturned as a result of prosecutorial misconduct, and four—including two wrongly prosecuted by Williams—were exonerated. Thompson later won a federal jury verdict for $14 million in 2007 after suing the District Attorney's Office for prosecutorial misconduct, but the U.S. Supreme Court, in a controversial 5-4 decision written by Justice Clarence Thomas, reversed the verdict, ruling that the prosecutors had immunity from liability. In a 2011 op-ed in the New York Times, The Prosecution Rests, but I Can't, Thompson wrote that more than money, justice was at stake. "I don't care about the money," he said. "I just want to know why the prosecutors who hid evidence, sent me to prison for something I didn't do and nearly had me killed are not in jail themselves."

U.S. Supreme Court to Hear Louisiana Death Penalty Case Where Lawyer Conceded Guilt Over Client's Objection

The United States Supreme Court will review a Louisiana death-penalty case to answer the question "Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?" On September 27, the court agreed to hear McCoy v. Louisiana, a case in which defense counsel informed the jury in his opening argument that Robert McCoy (pictured)—who was charged with murdering the son, mother, and stepfather of his estranged wife—had "committed these crimes," even though McCoy had consistently maintained his innocence and repeatedly objected to the defense strategy. The case is one of a number of Louisiana death penalty cases in which defense lawyers have told death penalty juries, against the defendant's wishes, that their clients had committed the killing. In McCoy's case, the prosecution offered a plea deal that McCoy turned down against the advice of his lawyer, Larry English. When English later told McCoy that he intended to concede McCoy's guilt, McCoy objected and tried to fire English two days before the start of the trial. The trial court refused to remove English from the case, and also denied McCoy’s request to represent himself. When English conceded guilt during the opening statement, McCoy interrupted, saying the police had killed the victims. He later took the stand and testified that he had been framed for the murders by a drug trafficking ring headed by law enforcement. McCoy's petition for review was supported with amicus (friend of the court) briefs by the Yale Law School Ethics Bureau and the Louisiana Association of Criminal Defense Lawyers. English had argued that he had admitted guilt as part of his ethical duty to try to save McCoy’s life. The Ethics Bureau, however, argued that conceding McCoy's guilt over his express opposition was an "egregious" violation of the lawyer's ethical duty. It wrote that the rules of ethics "do not allow a lawyer to sell out his client in court against their wishes." The brief of the Louisiana defense lawyers, joined by the Promise of Justice Initiative, said the court's refusal to permit McCoy to obtain new counsel was emblematic of a pattern of decisions undermining the right to meaningful representation in Louisiana death penalty cases. The brief pointed to 12 capital cases in which Louisiana courts resolved disagreements between capital defendants and their lawyers in a manner that was detrimental to the defendant. The brief said that, in four cases since 2000, the Louisiana courts had allowed capital defense counsel to concede guilt over their clients’ express objection. In four other capital cases during that time frame, capital defendants were required to represent themselves to avoid having their lawyer concede guilt. Four other times, invoking the same right to personal autonomy over litigation decisions that they rejected in the prior circumstance, the state courts gave capital defendants who wanted to waive rights final say in doing so. “What can be distilled from Louisiana’s approach is that when a question about a defendant’s autonomy arises, Louisiana appears to resolve the question in favor of expediency, rather than autonomy or dignity,” the brief said. "Rather than a principled and consistent commitment to the autonomy and dignity of capital defendants, the Louisiana Supreme Court has adopted a set of rules that ameliorates always to the benefit of the state, and never to the defendant."

Report Finds High Levels of Misconduct in Four Top Death Sentencing Counties

Four counties that rank among the most aggressive users of capital punishment in the United States have prolonged patterns of prosecutorial misconduct, according to a new report by the Harvard-based Fair Punishment Project. The report, "The Recidivists: Four Prosecutors Who Repeatedly Violate the Constitution," examined state appellate court decisions in California, Louisiana, Missouri, and Tennessee from 2010-2015, and found that prosecutors in Orange County, CAOrleans Parish, LASt. Louis City, MO; and Shelby County, TN—all of which currently face allegations of significant misconduct—ranked among the most prolific perpetrators of misconduct in their respective states. Orange and Shelby counties ranked 7th and 13th among the 2% of counties responsible for a majority of death-row prisoners in the U.S. as of January 2013, each having more individuals on their death rows than 99.5% of all counties in the country. In the midst of a scandal on an illegal, multi-decade practice of placing informants next to targeted prisoners to attempt to extract confessions from them, Orange County imposed more death sentences from 2010-2015 than all but five other U.S. counties. St. Louis City ranked 10th in executions from 1976-2012, and Orleans Parish has long been known for its prosecutors' failures to disclose exculpatory evidence to capital defendants, including three cases that have been the subjects of decisions by the U.S. Supreme Court. The statewide misconduct rankings produced by the Fair Punishment Project show that these counties are outliers not only in their heavy use of the death penalty, but also in their patterns of prosecutorial misconduct. Among the types of misconduct found by appellate courts were withholding exculpatory evidence, improper arguments at trial, and hiding deals and favorable treatment offered to informants in exchange for their testimony. In one case from St. Louis, prosecutors: suppressed evidence in the death-penalty trial of Reginald Clemons that would have supported Clemons' claim that he confessed only after having been beaten by police; never disclosed the existence of a rape kit that could have identified the perpetrator; and presented testimony in a co-defendant's trial that another person had committed acts attributed to Clemons at his trial. Longtime prosecutor Nels Moss, Jr. also advised police officers to omit certain observations that were initially included in their reports. Clemons was convicted and sentenced to death, but was awarded a new trial—scheduled for 2018—because of this misconduct.

Decisions Not to Seek Death in Two New Orleans Cases Highlights Louisiana's Trend Away From Capital Punishment

The New Orleans District Attorney's office has decided not to pursue the death penalty in two high-profile murder cases, highlighting a trend in Louisiana away from the use of capital punishment. In a one-week period, Leon Cannizzaro (pictured), the District Attorney for Orleans Parish, announced that his office would not seek the death penalty against Travis Boys, charged with fatally shooting a New Orleans police officer, and Chelsea Thornton, charged with killing her 3-year-old son and 4-year-old daughter. According to capital defense lawyer Nick Trenticosta, “prosecutors throughout the state are thinking twice about taking a case to trial for the death penalty.” Defense lawyers say that, in New Orleans, District Attorney Cannizzaro's office has been taking note of jury verdicts: one death sentence in 19 years. "New Orleans juries are life-giving people,” Trenticosta said. Assistant DA Christopher Bowan, a spokesperson for the Orleans DA's office, said the office evaluates each prosecution "on a case-by-case basis." In the Boys case, he said, dropping the death penalty would assure a quicker resolution of the case for Officer Daryle Holloway's family. Officer Holloway's mother, Olander Holloway, said, "I just think, at some point in time, this needed to move forward. I think with the death penalty issue, this would've dragged on forever and ever." Bowan did not give a reason for dropping the death penalty against Thornton, who has a long history of mental illness, but noted that Louisiana's prisons do not have a stock of lethal injection drugs and "there's no means for carrying out a capital verdict at this point.” No prisoner has been executed in the state since 2010, when Gerald Bordelon waived his right to appeal, and the last contested Louisiana execution was in 2002. Since the turn of the century, the state has carried out three executions, while eight death-row prisoners have been exonerated. In addition, the one case in which an Orleans Parish jury did vote for death—after convicting Michael Anderson for a quintuple murder—was overturned by the courts and later resolved with a plea to lesser charges. In 2016, federal authorities presented evidence that another man had committed the five killings.

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Rodricus Crawford Becomes 158th Death-Row Exoneree

Caddo Parish, Louisiana prosecutors formally dropped charges against Rodricus Crawford (pictured) on April 17, exonerating him in a controversial death penalty case that had attracted national attention amid evidence of race discrimination, prosecutorial excess, and actual innocence. He is the 158th person exonerated from death row in the United States since 1973. Crawford was convicted in 2012 and sentenced to death on charges he had murdered his one-year-old son. Crawford's appellate counsel, Cecilia Kappel, argued that the testimony underlying his conviction—the opinion of a local doctor who claimed the infant had been suffocated—was contradicted by autopsy results that showed pervasive bronchopneumonia in the baby's lungs and sepsis in his blood. After the trial, Kappel presented additional evidence from experts in the fields of pediatric pathology, pediatric neuropathology, and pediatric infectious disease that the child had died of natural causes. In a statement announcing that it was dropping the charges against Crawford, the Caddo Parish District Attorney's Office said, "New evidence presented after the trial raised questions about the degree of pneumonia together with bacteria in the child's blood indicative of sepsis are possibilities that require consideration. ...The death of a child is a tragedy under any circumstance for the victim, the family and the community as a whole, but this office is charged with the task to consider all of the evidence in a case and to bring a charge when the evidence can support it. For these reasons, the State has elected not to retry Rodricus Crawford." In November 2016, the Louisiana Supreme Court had ordered a new trial for Crawford because prosecutor Dale Cox had improperly removed jurors on the basis of race. Caddo has a documented pattern of racially biased jury selection, with a 2015 study finding that prosecutors struck black jurors at more than triple the rate of other jurors. Data from 22 felony trials prosecuted by Cox showed he had struck black jurors at a rate 2.7 times higher than other jurors. Cox attracted national criticism for questionable comments and practices and his perceived overzealous pursuit of the death penalty. He personally prosecuted 1/3 of all the cases in which Louisiana juries returned death sentences between 2010-2015, and wrote an internal memo on the Crawford case in 2014 stating that Crawford "deserves as much physical suffering as it is humanly possible to endure before he dies." In 2015, he told The Shreveport Times that he believed the state needs to "kill more people." Caddo Parish is among the 2% of U.S. counties responsible for a majority of death-row inmates, and had a death sentencing rate per homicide eight times higher than the rest of the state of Louisiana from 2006 to 2015. Ben Cohen, an attorney for Crawford, said, "This case has always been about injustice and the disproportionate use of the death penalty in Caddo Parish. In deciding not to retry Rodricus Crawford, the Caddo Parish District Attorney’s office is righting this injustice, restoring integrity to their office."

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