A Criminal Enterprise

Louisiana v. Barbour: Non-unanimous verdicts hinder justice in the South

Posted in Cases, News by Sophie Cull on February 2, 2011

Despite showing interest in a cert petition dealing with the issue of non-unanimous juries, the US Supreme Court has again decided to let the issue alone, rejecting to hear Herrera v. Oregon earlier last month. The Court had asked the state of Oregon to file a response to the petition late last year, but passed over the petition in silence on January 10.

Louisiana defendant Troy Barbour is also awaiting a response from the SCOTUS to his cert petition dealing with the same issue. The ABA has filed an amicus in support of his appeal, but it remains to be seen whether Barbour’s case will catch the Court’s attention.

In Barbour’s petition, defendant cites Justice Kennedy in providing an analysis of jury dynamics and the importance of non-unanimous verdicts:

The dynamics of the jury process are such that often only one or two members express doubt as to [the] view held by a majority at the outset of deliberations. A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury. The requirement of jury unanimity thus has a precise effect on the fact-finding process, one which gives particular significance and conclusiveness to the jury’s verdict. Both the defendant and society can place special confidence in a unanimous verdict.

United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir.1978)

The Equal Justice Initiative’s recent report on race and jury selection discusses the importance of the racial diversity of juries in order to promote the inclusion of different perspectives. Compared to diverse juries, all-white juries are more likely to make factual errors, are less likely to correct their mistakes, are likely to spend less time deliberating, and consider a smaller range of perspectives.

Reflecting on Justice Kennedy’s comments, it seems that we should consider the impact of non-unanimous convictions in a state like Louisiana where convictions are handed down by nearly all-white juries. If such juries are more likely to make mistakes and spend less time deliberating, then surely they shouldn’t be able to expedite the deliberative process by leaning on non-unanimous verdicts.

Deterrence and the Death Penalty

Posted in News by Sophie Cull on January 18, 2011

Outgoing Governor of Pennsylvania, Edward Rendell, wrote a letter to the state General Assembly in his final days as governor, questioning the effectiveness of the death penalty. He wrote,

“As a former District Attorney and as a death penalty supporter, I believe the death penalty can be a deterrent – but only when it is carried out relatively expeditiously.”

Dissatisfied by the delays in actual executions caused by the appeals process, the Governor called on legislators to decide if the process could be sped up or otherwise, called them to consider repeal.

There is no doubt that Rendell is a death penalty supporter: he signed six execution warrants on the same day that he issued this letter – bringing the total number of execution warrants to 119 during his term as governor.

Rendell subscribes to Beccaria’s well-accepted theory that deterrence will only be achieved through punishment that swiftly follow on the heels of the crime. His frustration with capital punishment is rooted in his belief that it can deter future crimes – if only the process didn’t take so long.

Last week, the Illinois legislature voted to repeal the death penalty. Some opponents of the bill spoke about the need for capital punishment to protect prison guards and deter murderers serving life from killing inside the prison walls. Others spoke of general deterrence, claiming that without the death penalty, there would be a higher murder rate in the state of Illinois. That will remain to be seen if the Governor signs the bill.

Regardless of whether the death penalty does deter would-be murderers (and we can probably all agree that pursuing a conclusive answer to this question seems much like chasing the white rabbit), the question we should ask is: what weight should we give deterrence in deciding whether or not we want the death penalty?

It seems to me that deterrence is a secondary reason to have the death penalty which is only compelling in conjunction with a primary reason. If we believe that the death penalty is a just, retributive punishment for the taking of a life, then deterrence would provide a further reason for carrying that punishment out.

But deterrence alone should not be a satisfactory reason for our society to ask for the death penalty. We may deter a child from disobeying us by striking her across the cheek, but just because our technique is effective, it does not make it right. You may disagree, thinking “The death penalty is absolutely necessary if it means we will stop future homicides.” But that is to assume it is the only way to prevent future homicides, as though there are no alternative measures we might take. I believe that way of thinking undersells our potential to create positive change in our communities. In Louisiana, for instance, perhaps the money that is spent potentially preventing homicides by putting people on death row could be funneled into education, healthcare and infrastructure to try and turn around Louisiana’s ranking as the 2nd worse state in the U.S. to raise a child. It is not a coincidence that the vast majority of death row inmates in Louisiana grew up in poverty and dropped out of school. While the link between the death penalty and the homicide rate is inconclusive, there is no question that education and poverty plays a key role in the prevalence of violent crime.

Therefore, I submit that we should not simply ask “is the death penalty deterring crime?” as Governor Rendell urged his legislature to do; we should ask “is the death penalty the most effective way to deter crime?”

A Dearth of Precedent: What Happened to Racism?

Posted in Uncategorized by Bidish J. Sarma on November 30, 2010

It turns out that an exhaustive Lexis-Nexis search for Louisiana Supreme Court cases in the past ten years that discuss “racism” or “race discrimination” or “racial discrimination” yields just 31 results. Of those 31 cases, 27 are capital direct appeals over which the Court has mandatory jurisdiction. These death penalty cases have often raised claims that the State discriminated against racial minorities in the selection of grand or petit jurors. Remarkably, only four other Louisiana Supreme Court cases in the past decade even mention “racial discrimation.” One of these cases involves disciplinary action against two lawyers, and only makes a passing reference to a race discrimination lawsuit one was retained to litigate. See In Re Kelly, 857 So. 2d 451 (La. 2003). Another involved a lawsuit by former police officers that alleged racial discrimination and harassment against the Baton Rouge Police Department. However, the Louisiana Supreme Court’s opinion did not deal with these heavy allegations, but instead simply remanded the case to lower courts to allow the Police Department to pursue its argument that the plaintiffs’ claims had prescribed (an argument which no lower court recognized as a winning argument). See Alcorn v. City of Baton Rouge, 863 So. 2d 517 (La. 2004). In the end, then, only two Louisiana Supreme Court non-death-penalty opinions meaningfully discuss race discrimination. In one of those cases, the Court reversed the intermediate appellate court’s finding that a civil service board violated the African-American plaintiff police officer’s constitutional right to equal protection when it imposed a fitness qualification upon him at the time he was up for promotion although no similar previous qualification had ever been imposed on white officers. See Moore v. Ware, 839 So. 2d 940 (La. 2003). The Louisiana Supreme Court was not impressed with Mr. Moore’s claim of race discrimination, holding “the facts of the present case do not establish that Moore carried his burden of proving a prima facie case of racial discrimination.” Id. at 950. In the fourth and final non-capital case, the Louisiana Supreme Court conducted a thorough review of the party’s peremptory strikes to find that the civil defendant has intentionally discriminated against African-American prospective jurors on the basis of their race. See Alex v. Rayne Concrete Serv., 951 So. 2d 138 (La. 2007). Perhaps what is most remarkable about the Alex case is that the Louisiana Supreme Court has never engaged in such a detailed review of a claim of race discrimination in jury selection in a death penalty case, where much more is at stake.

The dearth of recent high court rulings on race in this state is surprising, especially given that: the U.S. Supreme Court in 2008 found that Jefferson Parish prosecutors discriminated on the basis of race in the selection of Allen Snyder’s capital jury; the Jena 6 episode erupted in December 2006; and incidents like the Danzinger Bridge shootings occurred in Katrina’s wake just five years ago. It is undeniable that race and racism still matter in Louisiana. So, why is so little apparently going on in front of the state’s highest court? I can think of a few possibilities, though these are all speculative:
(1) The Louisiana Supreme Court has declined to utilize its discretionary review power in cases which raise issues of racial discrimination, but has been compelled to confront those issues in death penalty cases because state law provides that the Court must decide those cases on the merits;
(2) Civil suits alleging race discrimination are disproportionately settled outside of court;
(3) Potential plaintiffs in Louisiana lack faith in the judicial system’s ability and willingness to decide claims of discrimination fairly;
(4) A paucity of (pro bono/public interest) civil rights lawyers interested in identifying issues and equipped to litigate them means that individuals with legitimate claims can’t afford or find representation;
(5) As some legal commentators recently explained, claims are difficult to mount because systems rather than identifiable and particular individuals perpetuate covert discrimination: “outcomes are rarely attributable to overt racial discrimination; instead, they result from patterns of implicit bias and institutionalized racism that tend to repeat and normalize the status quo.” Eva Paterson, et al., The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175, 1179 (2008);
(6) The U.S. Supreme Court’s Equal Protection’s “intent” doctrine has made it nearly impossible to prove that the State has intentionally discriminated on the basis of race. See, e.g., id. at 1190-91;
(7) Individuals are reluctant to make allegations of race discrimination because they “are politically incendiary.” Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1103 (2009).

Perhaps the explanation is some combination of these factors, plus others I haven’t identified. Whatever the cause, the result is alarming. The reality is: “While the Jena 6 incident was a disturbing and highly visible reminder of the continued prevalence of racism in America, the equally troubling reality is that far less visible forms of racism and discrimination occur everyday and go largely unchallenged.”  Eva Paterson, et al., The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175, 1177 (2008). Incremental steps must be taken to address each of the factors contributing to the problem of unchallenged racism. But, there certainly exists an opportunity for the courts to step up and meaningfully analyze the claims that are actually presented to them. At the Louisiana Supreme Court, a logical first step would be to give capital defendants meaningful appellate review when they make substantiated claims that the State discriminated against prospective jurors in their cases. Then, it can step beyond the world of mandatory jurisdiction and provide litigants with a realistic hope that their concerns will not fall upon deaf ears. But, a simple Lexis search leaves one to wonder whether the fight for racial equality is fading, despite clear evidence for its need.

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Williams v. Louisiana – Cert Conference on May 13th

Posted in Cases, News by Bidish J. Sarma on May 6, 2010

The previous post contains a link to our cert petition in Williams v. Louisiana, which asks the U.S. Supreme Court to weigh in on the issue of proportionality review of capital sentences in Louisiana.  Since the time of that post, the State has filed its Brief in Opposition, and we filed a Reply.  The Court is set to meet on the petition on May 13th. 

Both the Louisiana Supreme Court and the State have taken the position that race did not play a role in the death sentence in this case because there is no evidence that Mr. Williams intended to kill the victim because of her race.   But, there is disquieting statistical evidence that the race-of-the-defendant and race-of-the-victim play a significant role in determining which defendants receive death sentences out of East Baton Rouge Parish.  The last thirteen people sent to death row from the parish are African-American, and there is evidence a black man convicted of killing a white woman has a 1 in 2 chance of being sentenced to death, while a white man has never been sentenced to death for killing a black person in the last thirty years (or perhaps ever).

The State’s Brief in Opposition can be found here: State’s Brief on Cert 

Our Reply to the State’s Brief in Opposition can be found here: Cert Reply to BIO FINAL

Cert Petition on Proportionality Review in Louisiana

Posted in Uncategorized by Bidish J. Sarma on March 16, 2010

On March 10, our office filed a cert petition in the case Williams v. Louisiana.  The petition asks the Supreme Court to review his core claim that the current administration of the death penalty in Louisiana leads to unconstitutional arbitrariness.  The question presented is: “Whether the Petitioner’s death sentence violates the Fifth, Sixth, Eighth, or Fourteenth Amendment where: (1) the Louisiana Supreme Court failed to provide meaningful appellate proportionality review; and (2) the jury did not determine beyond a reasonable doubt that death should be imposed.”

The cert petition brings attention to the Louisiana Supreme Court’s woefully deficient proportionality review.

You can view the petition in its entirety right here: Cert Petition FINAL

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.

[New Orleans] Judge refuses to increase bond [from ZERO] for cardiologist’s son charged with killing pedestrian while driving drunk

Posted in Uncategorized by Robert Smith on September 29, 2009

This is the title (with my slight modifications) of a disturbing article by Gwen Filosa in today’s Times Picayune. Here is the background:

An Orleans Parish judge has refused to increase bond for a man charged with vehicular homicide,  despite prosecutors’ pleas that his family’s wealth and ties overseas make him a flight risk.

Abhishek BhansaliAbhishek Bhansali,  23,  a New Orleans native and son of a prominent cardiologist,  quickly bonded out of jail on his own recognizance after police arrested him March 21 for allegedly killing a pedestrian outside an Uptown club while drunkenly operating a 2008 BMW. He has pleaded innocent to the charge.

Michael Keith,  34,  a father of three who lived in Metairie and had served in the Marines,  was knocked 150 feet into the air while walking in the 3700 block of Tchoupitoulas Street. He was pronounced dead at the scene about 3 a.m.

Bhansali was speeding and had swerved into the wrong lane  —  driving against traffic  —  when he struck Keith,  a police report says. The driver was well over the legal limit for alcohol consumption,  registering .128 on a blood-alcohol test,  according to police. The legal limit in Louisiana is .08.

Magistrate Gerard Hansen on March 21 gave Bhansali,  a New York University business graduate who has worked on promotional campaigns for Absolut vodka,  the most lenient of bonds,  allowing a promise to return,  without financial risk.

This situation doesn’t need much commentary. Earlier this year, in Amite, Louisiana, a man accused of killing three people (in the course of the same incident) was released on 250,000 bond AND a GPS bracelet. No word on whether that guy’s dad is a wealthy cardiologist, but some meaningful bond amount and GPS seems to make a lot of sense.

Much the same disparity could be seen in Mississippi earlier this month.  Darlena Mickel, who allegedly caused the death of a toddler while driving intoxicated, had her bond set at 500,000. This despite the victim’s family (who are Mickel’s neighbors) testimony during the bond hearing that Mickel would  “lay down her life for that kid” and that the accident was “an accident.” Oh, and at the time of the bond hearing, the lead investigator “thought” that Mickel was intoxicated, but was awaiting a toxicology screen for confirmation. Mickel testified that she had no prior criminal record.

By contrast (though nowhere near the free bail in New Orleans), in July 2009, in Jackson, Mississippi, Karen Irby was released to her home on 250,000 bond (half the amount of Mickel’s) after this event (to be fair, Irby received extensive injuries, which might decrease flight risk):

Jackson police said Irby was driving a Mercedes at about 100 mph when it slammed into a truck carrying doctors Daniel Pogue and Lisa Dedousis. Both died. Irby and her husband, Stuart Irby, suffered extensive injuries.

Karen Irby had alcohol in her system at the time of the wreck Feb. 11 at about 10 p.m., records show.

Under the terms of her $250,000 bond, Irby is being held on house arrest and is being monitored electronically, according to court records.

Not even famous NFL players get away with this treatment. Last week, former Detroit Lion Charles Rogers, also 28, had bond set at 50,000 for misdemeanor drunk driving and  he didn’t kill anybody.

Now I’m not an expert on benchmark bond amounts, and I realize that different places and different judges feel differently about different crimes and are willing to take different risks re likelihood of flight, but here are a few guidelines I am sure of:

1. rich people should not receive a lower bond for a more aggravated version of the same crime that a poorer person commits

2. SOME bond, or at least a GPS device, is called for when a person is accused (especially on damn good probable cause) of killing another person while driving drunk.

But I thought these points were obvious.

P.S. I recommend reading the comments in the comment section at the end of the Times-Pic article linked above. Examples:

This is a family that has been good for New Orleans. People of this city (depending on who they knew) have always been given special treatment. Why should this family be any different? They have definitely earned it.
I’m not saying the victim’s family should not prevail in civil court .Just why should another life be ruined (even if it was by his own stupid mistake)?

and:

You cannot be serious, that he should get away with murder simply because his family has done good things for the city?!?! Driving with a blood alcohol content THAT far above the legal limit is NOT a “stupid mistake”, and I’m fairly certain you would not feel the same way if it was one of your loved ones who had been crossing the street.

and:

Please. Favored treatment happens every day. We’ve got police who killed or beat people on the streets as if nothing happened. However, bond is to insure that a suspect will appear in court. This guy has no reason to run. He will get lenient treatment like every drunk driver in Louisiana who kills or injures someone.

and:

Ben Willard is a disgrace to the bench. Anyone who has ever observed his court knows that he is totally incompetent and undoubtely is influence by the prestige of this family. I wonder if they contributed to his campaign. Justice is suppose to be blind not blindsided by people of wealth and position. Is it possible for New Orleans to ever be free of corruption and inappropriate actions of its leaders.