A Criminal Enterprise

Louisiana Executes Gerald Bordelon

Posted in Cases, News by Bidish J. Sarma on January 8, 2010

The State of Louisiana took Gerald Bordelon’s life yesterday.  Mr. Bordelon volunteered for execution.  After a jury convicted him of first-degree murder at the guilt phase of his capital murder trial, he asked his trial attorneys not to present any mitigating circumstances at the penalty phase – the phase where the jury had to decide whether the convicted murderer would be executed, or would serve a life-without-parole sentence.  After the jury sentenced him to death by execution, Mr. Bordelon waived his right to challenge that sentence in front of the Louisiana Supreme Court.  The Louisiana Supreme Court nonetheless issued an opinion in his case that ultimately dismissed the appeal.  The Court indicated that it was legally obligated to decide whether Bordelon was competent to waive his appeals and also to determine if his sentence was proportionate.  In October, the Court cleared the path for today’s execution, and ruled that Mr. Bordelon is competent to waive his rights to an appeal, and that the death sentence in this case is not disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

Generally, it isn’t uncommon for death-sentenced defendants to “volunteer” for execution by waiving their appeals.  According to the NAACP Legal Defense Fund, roughly 12% of defendants waive appellate review.  Yet, Bordelon was the first person to successfully volunteer in Louisiana since the death penalty was reinstated here in 1976.  And, while every case in which someone “volunteers” presents complex legal, ethical, moral, and philosophical questions, Gerald Bordelon’s case is worth thinking about carefully.

From my perspective, Mr. Bordelon’s execution is unsettling because it was not the product of an adversarial process, and the American legal system requires that final adjudicated judgments be informed by the zealous advocacy of lawyers in adversarial positions.  Instead, Mr. Bordelon’s death was the result of multiple, compounded perversions of our criminal justice system.   

First, the jury that sentenced Mr. Bordelon to death did not hear any mitigating circumstances.  According to the Louisiana Supreme Court, “[t]he penalty phase . . . began with a waiver by defendant of his right to present mitigating evidence . . . .”  Without mitigating evidence, the jurors had incomplete information about the person the State implored them to condemn.  Not everyone who commits a first-degree murder should be executed.  Indeed, the United States Supreme Court has held that some individuals cannot be constitutionally executed.  Mitigating evidence must be presented in order for the jury to make an accurate assessment of whether this particular defendant deserves the harshest penalty available.  Was Bordelon mentally ill?  Did he suffer abuse throughout his childhood?  Would he be able to live peacefully in a controlled environment?  Did he feel remorse for the crime?  These and other critical questions were left unanswered at trial.  The penalty phase did not pit two opposing parties against each other in the way we all learn how American trials are supposed to unfold.  The jurors sat and watched, as the State’s lawyers were not challenged when they asked the jury to order Bordelon’s execution.  Not surprisingly, the jury returned a death sentence.

Second, the Louisiana Supreme Court found that the defendant was competent to waive his appeals even though no party took the position that he may not be competent.  To determine competence, the Louisiana Supreme Court remanded the case and asked a sanity commission to make a finding upon which the Court could later rely.  The Court made the work of this sanity commission sound grave: “When a defendant asserts that he is eligible for execution because he has terminated all further legal proceedings, the consequences of an erroneous determination of his competency to make that decision are so severe that the record of the proceedings conducted on the sanity commission’s findings must show by clear and convincing evidence that he has the capacity to make a knowing, intelligent, and voluntary waiver of his right to appellate review of his capital conviction and sentence of death.”  What the Court did not say is that these commissions do not typically produce conclusions in a non-adversarial setting.  When neither party provided reasons to question the inmate’s competence, the work of the commission was basically done before it even really began.  I don’t suggest here that Mr. Bordelon was not competent to waive his appeals (although the Supreme Court made the competency standard sound a whole lot more difficult to meet than it really is), but point out that the entire process by which this execution was approved does not comport with our system’s purported notion of justice.

Third, the Court’s comparative proportionality review is far from meaningful.  In the Bordelon opinion, the Louisiana Supreme Court insisted that it had an independent duty to conduct its “Rule 28 Review” of the death sentence “to determine . . . whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”  As we’ve established here, the Court has not conducted a serious proportionality review in roughly three decades.  And, the way that Louisiana Supreme Court Rule 28 is written and the way that records are kept in Louisiana, the Court simply cannot make an effective comparative proportionality review without the full adversarial participation of both parties.  In Bordelon, the Court yet again: only truly evaluated cases that resulted in death sentences (and not those that came back with life-or-less sentences); cherry-picked death sentences from other jurisdictions without looking at the life-or-less cases from those jurisdictions; and failed to look into the mitigating circumstances present or absent in those other capital cases.  It is unclear whether the Court enforced the Rule 28 command that “[d]efense counsel shall file a [sentence review] memorandum on behalf of the defendant . . . .”  Moreover, the Court never identified or reviewed any mitigating circumstances because none were presented at trial.  How could the Court meaningfully compare “considering both the crime and the defendant” when it had utterly incomplete mitigating information about the defendant in this case?  Perhaps an intellectually honest and rigorous proportionality review would have revealed that Mr. Bordelon’s sentence was proportionate.  However, the breakdown of the adversarial process and the Court’s unwillingness to look beyond what was presented to it made a meaningful proportionality review impossible.

One could certainly argue that Mr. Bordelon was rightly allowed to waive his appeals.  And, maybe that’s true.  Even if the system functioned the way it was designed to in this case, Gerald Bordelon may still have been executed today (in accordance with his wishes).  However, the system did not work in the manner intended, and that is what troubles me.  The judges and lawyers involved ignored fundamental legal principles to facilitate the result that all interested parties apparently wanted in the end.  When we sacrifice principle for expediency, we undermine the very institutions which stand upon those principles.  Once again, the death penalty proves to be arbitrary and unprincipled above all else.

5 Responses

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  1. Barry said, on January 11, 2010 at 1:15 am

    Bordelon was a vicious monster. There are other sick crimes he is responsible for. He so called volunteered for execution??? His latest victim, his 12 year old stepdaughter was brutely raped and murdered by this monster. Good ridance to garbage.

  2. More Info said, on January 17, 2010 at 11:20 pm

    I am glad someone does care enough to look at the legal ethics involved in this case of which there are many more to be considered. Praise to those concerned in ethics and the Death Penalty.

    A. The conditions of the first offenders State Prison at DeQuincy, LA when Gerald was there was horrific in that inmate gang rapes were rapid, young first offenders were aunctioned off by life timers at the time of arrival even while stepping off the bus for the first time. Gerald was a prominent figure in busting the place wide open resulting in the warden, assistant warden, along with 28 guards stepping down and the National Guard coming in to take control of the place before it was renamed back in the eighties.
    This was his first experience in the hands of the State of LA.
    How many sex crimes were witnessed and/or committed against him and others and where are the other men now?
    2. The ADA prosecuting the case withheld prominent info the entire time from the defense with all due intent during the Suppression Hearings because she knew it could affect the outcome of the ruling. FBI Agents names involved were kept out of the files because of threats they made – FBI AGENT Mark Safarik- recorded tapes by EBR Parish Detectives were not given to the defense- THE ADA told on herself on the record if others would investigate the matter- it is there. The Defense attorney did nothing to record these issues, along with Judge Bennett turning his head when the ADA brought up issues she had previously denied having knowledge of on the stand.
    3. The amount paid to the 2nd Defense attorney was never revealed although asked for on the stand, along with the PD’s Chief refused to turn over records asked for on the stand.
    4. The death threat letters that the LASC acknowledged review was not waived on them- were completely kept off the stand with all due intention, especially by the 2nd Defense attorney Wayne Stewart at the request of the DA.
    5. Wayne Stewart also admitted to keeping the DA up to date on his defense strategies before trial.
    6. The DA and Detectives were monitoring every call and letter sent to Gerald by his family whom the defense attorneys were counting on to communicate with Gerald about his defense because the Defense would not go see him personally.
    7. The Prosecutor paid for second DNA testing at thelab of their choice that Gerald insisted on because the PD’s office refused to pay for it.
    Many more issues to be made….many. Livingston, LA has a screwed up corrupt practice of procedures in enforcing the death penalty with no accountability.

  3. Nils said, on May 25, 2010 at 11:31 am

    Bordelon was indeed a monster for the crimes he committed, however there is no reasonable measure that should sentence the accused to death. The death Penalty is an attrocious punishment that is disgustingly unconstitutional in terms of Human Rights worldwide. For a 1st World State such as Louisiana to condone this punishment is absurd.

  4. […] questions that his case raises. The post below comes from January 8, 2010, and can be found here in its original […]

  5. Joan said, on May 31, 2011 at 6:05 pm

    I knew Gerald Bordelon as a child, he went by his birth name, Jimmy Deshotel…his step father adopted him later on…what most people don’t know is his stepfather molested him for years. He was ruthlessly picked on by older boys because he was a bit slow..there are many factors that made the man Gerald Bordelon into the predator he became. Please remember a sweet boy named Jimmy …not Gerald. Have mercy on Jimmys soul Lord.

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