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.

Montejo v. Louisiana (II) Cert Petition

Posted in Cases, News by Bidish J. Sarma on November 22, 2010

The cert petition asks the U.S. Supreme Court to take a second look at this important case involving a defendant’s right to counsel under the Sixth Amendment.  You can access the pleadings here (Cert Petition _ Montejo v. Louisiana II), here (State’s Brief in Opposition), and here (Reply to Brief in Opposition).

To see thoughts on why this is a crucial issue at this time, see Prof. Ron Sullivan’s post here.

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

Court-Watching: Smith v. Spisak

Posted in Cases, News by Bidish J. Sarma on October 21, 2009

On October 13, I sat in on the two oral arguments scheduled for the morning: Padilla v. Kentucky and Smith v. Spisak.  For this post on the Spisak case, I’ve relied on my own notes from the argument, the transcript posted on the Supreme Court’s website, and some media observations after the argument.

The State’s cert petition to the Supreme Court raised two issues for the Court to resolve: (1) Whether the Sixth Circuit’s ruling that the trial court’s jury instructions violated Mr. Spisak’s constitutional rights contravened the Anti-Terrorism and Effective Death Penalty Act (AEDPA); and (2) Whether the Sixth Circuit’s ruling that the defense lawyer’s closing argument rendered his assistance ineffective contravened AEDPA.  When the Court agreed to hear the case, those concerned with the rights of criminal defendants shuddered, particularly because the Supreme Court had already remanded the case once before in 2007.  See Hudson v. Spisak, 128 S. Ct. 373 (2007) (noting that three liberal Justices – Justice Stevens, Justice Ginsburg, and Justice Breyer – would deny the petition for writ of certiorari).  By all accounts – before and after oral argument – it appears the defendant (and the Sixth Circuit) should brace for a ruling that puts him back under a sentence of death.

To the extent facts about offenders influence how courts view the legal issues presented in a case, Mr. Spisak has effectively made himself as unsympathetic as possible.  The State’s brief on the merits highlights some of the key facts from the notorious Ohio case:

Respondent Frank G. Spisak, Jr. killed Horace T. Rickerson, Timothy Sheehan, and Brian Warford in a series of shootings at Cleveland State University in 1982. . . . He said that his actions were motivated by his hatred of gay people, blacks, and Jews, and he specifically targeted the campus of Cleveland State University. . . . During his days-long testimony, Spisak . . . identified Hitler as his spiritual leader. . . . Other cues during the trial reinforced the depravity of Spisak’s beliefs. Before trial, Spisak grew a moustache and shaved it to resemble Hitler’s. And on cross examination, after the prosecutor read into evidence a violent letter from Spisak that was laced with racist epithets, Spisak declared “HeilHitler” and performed the corresponding salute.

With these facts in the background, Richard Cordray, the Attorney General of Ohio, began his oral argument on behalf of the State.  He first addressed the Sixth Circuit’s ruling that the trial court’s jury instructions violated the rule set forth by the Supreme Court in Mills v. Maryland.  Justice Sotomayor immediately asked the first question, pointing out an oddity to the Sixth Circuit’s ruling:

JUSTICE SOTOMAYOR: Why? I — I have been trying to figure out why the State court would know in its decisionmaking that Mills commanded a different result when Mills was issued after the State denied its petition for rehearing.

MR. CORDRAY: It’s a bit of a conundrum, Your Honor, because Mills was issued after the Ohio Supreme Court’s decision here, but before it became final on direct review when cert was denied by this Court in March of 1989.

Kent Scheidegger over at Crime & Consequences elaborates on the conundrum here (http://www.crimeandconsequences.com/crimblog/2009/10/spisak-new-rules-and-justice-s.html), and appreciates the signal that Sotomayor may be willing to enforce AEDPA “vigorously.”

As the argument proceeded, Mr. Cordray explained why the State believes the Sixth Circuit’s ruling is a new extension of the rule enshrined in Mills.  One might wonder if Mills itself is in trouble with this Court, or if the Court will give a green light to states that want to stop the practice of instructing the jury about the effect of one juror holding out on a death sentence:

MR. CORDRAY: At the time, the instructions pushed the jury toward unanimity one way or the other. Do the aggravators outweigh the mitigators or do they not? Since that time, the Ohio Supreme Court as a matter of practice has been willing to go further and instruct the jury, or have the jury be instructed, that if a single one of you feels that the aggravators do not outweigh the mitigators, that will preclude a death sentence. But that has never been constitutionally required by this Court. It is an extension of Mills v. Maryland that has never been so held by this Court, and in fact is a source of a — of a significant overwhelming majority of circuits the opposite way.

The State’s argument proceeded on to the second issue – the defense counsel’s closing argument.  Based on the questions the Justices asked Respondent, it seemed that the State’s argument here was well-received by most Justices.

Mr. Michael Benza argued on Mr. Spisak’s behalf.  At the outset, Chief Justice Roberts and Justice Scalia jumped on his claim that the defense counsel’s closing argument constituted ineffectiveness assistance.  Even Justice Breyer seemed to endorse the trial counsel’s strategy to agree that his client was a cold-blooded and unsympathetic murderer, but argue that he is clearly mentally ill and therefore should not be executed:

JUSTICE BREYER: What would you have done? I mean, I’m — I’m not experienced in this. But I mean, I have heard the other side and I have read the argument. And it makes sense logically to say he has the worst defendant he has ever seen. He’s murdered lots of people in cold blood. He gets up on the stand and says: I’m going to kill a lot more. He sounds totally bonkers. And — and he says to the jury, I can’t tell you that what he did was not aggravating; it was terrible. I can’t tell you that there’s anything here that should make you feel better about him; there is nothing. But we are a nation of people who are humane and our law says don’t put a person to death when he fills with his nuttiness that third prong, which is a lower standard of insanity than I had to meet. But it’s clearly met and here are the experts; I point to their testimony, and that’s what they said. So be humane.

In what seems to be a rare occurrence, Justice Scalia agreed with Justice Breyer, and went even further: “I thought it was a brilliant closing argument. . . . This was an extraordinary trial, and it seems to me that the — that the technique that — that counsel used to try to get mercy for this fellow was — was the best that could have been done.”

After Mr. Benza defended his position, he and the Justices were sidetracked for several minutes on an interesting question about AEDPA deference.  I explore this discussion below.  That peripheral discussion became so involved that Justice Ginsburg had to remind the Respondent that he had a limited amount of time: “Mr. Benza, you might want to use what time is remaining to deal with the other issue, which we haven’t talked about at all.”

On the Mills issue, Mr. Benza gave a straightforward answer to the timing conundrum originally raised by Justice Sotomayor:

Teague says that the decision for application of a newly established law or a new established constitutional rule is predicated on the denial of direct appeal, which in this case would be the cert denied by this Court of the direct appeal of the case, which happened in 1989, a year after the decision in Mills was handed down.

He then argued that the Ohio jury instructions were confusing because they would lead a reasonable juror to believe that there must be unanimity on the existence of a mitigating factor before it could be considered and given effect by any juror.

As this AP article points out, “most of the justices were skeptical of Benza’s arguments.”  There is little doubt about how this case will come out.

Although not central to the dispute in this case, Mr. Cordray raised a suggestion that later became the source of a major discussion between the Justices and Mr. Benza.  In arguing that appellate courts must give deference to trial court decisions under AEDPA, Mr. Cordray explained why the trial court’s summary disposition of the ineffective assistance claim warranted deference under the two-prong Strickland test:

If the court simply gives a summary affirmance or summary disposition and doesn’t specify which prong, I think the Court has to give deference under both prongs, because the alternative would be to give deference under neither prong, which is inconsistent with the — the AEDPA statement that we have to did defer to an adjudication on the merits by a State court.

Mr. Benza, however, argued that the trial court’s summary adjudication did not trigger AEDPA’s deference requirement:

MR.BENZA: We have no idea whether they decided that there was deficient performance, but no prejudice — that there was, in fact, deficient performance, but no prejudice, that this was not deficient because it was reasonable strategy. It is also possible that the lower courts were misapplying [the law].

I found this line of argumentation fascinating because it implicates the vast majority of decisions made by trial courts in habeas review.  Rather than give detailed reasons for their rulings, many trial courts deal with claims summarily.  I have always found it troubling that such cursory explanations become essentially unreviewable on appeal.  Apparently, the Respondent’s lawyer in this case agrees.  Justice Scalia does not, however:

JUSTICE SCALIA: When we — when you don’t know what a lower court has done, the rule is you assume the best, not the worst. Isn’t that the standard rule of review?

But, Mr. Benza elaborated on the problem as it applied to this case: “The problem that you have in that is, when you try to apply AEDPA to this particular claim, you don’t know how the state court, in fact, decided this case.”

Justice Breyer explained that the Respondent’s position has far-reaching implications:

JUSTICE BREYER: How — how does that work? Certainly, it’s a fairly common thing, that the defendant will make — let’s say, 20 arguments, maybe he would even number them. And it’s fairly common to find a court of appeals in a state that says, as to argument number 17, and then they characterize it, we reject that argument.

Mr. Benza took the (gutsy) position that:

MR. BENZA: I would — I think the issue then would become that, when a state court chooses to summarily deny, without evaluation, an explanation of the merits of the claim, that, when it comes to habeas review, the constraints of AEDPA are lifted.

The Justices took exception with this proposition, and worried that it would overburden lower courts to require that they elaborate on all of their decisions.  Yet, if giving reasons for rulings is the essence of providing justice, Mr. Benza’s proposition does not seem so crazy to me.

Court-Watching: Padilla v. Kentucky

Posted in Cases, News by Bidish J. Sarma on October 20, 2009

On October 13, I sat in on the two oral arguments scheduled for the morning: Padilla v. Kentucky and Smith v. Spisak.  For this post on the Padilla case, I’ve relied on my own notes from the argument, the transcript posted on the Supreme Court’s website, and some media observations after the argument.

According to his merits brief to the Supreme Court, the Petitioner, Jose Padilla, arrived in the United States in the 1960s and is a permanent resident here.  In 2001, Padilla was arrested and charged with felony trafficking in marijuana after he was pulled over with more than 1,000 pounds of marijuana in his commercial truck.  When he asked his defense lawyer if there were any immigration consequences to pleading guilty to the felony, the attorney said that he “did not have to worry about immigration status since he had been in the country so long.”  The crime, however, is a deportable crime that subjects Padilla to deportation.

In his petition to the Supreme Court, Jose Padilla raises the question of whether the Sixth Amendment right to the effective assistance of counsel protects him from his attorney’s misadvice.

The heart of the dispute is whether the Sixth Amendment right to the assistance of counsel in all “criminal” prosecutions includes a guarantee of effective assistance in advising the client on the collateral consequences of that prosecution.  In American law, immigration matters are considered ‘civil’ in nature, even though they can lead to deportation.  Here, the Petitioner argues that the current standard that governs ineffective assistance of counsel claims (Strickland) evaluates the misadvice claim based on if the counsel’s performance is deficient and prejudicial to the client.  The deficiency prong of the Strickland is met when the counsel’s actions are objectively unreasonable.  The State, however, argues that civil collateral matters fall beyond the scope of the Sixth Amendment, and that misadvice on collateral matters does not give rise to a claim of ineffective assistance.

In addition to the two parties slated to appear, the U.S. government made a (somewhat surprising) appearance.  Though the government supported ‘affirmance’ of the ruling below in favor of Kentucky, the argument demonstrated that the government did not support the Respondent’s legal reasoning.

Stephen B. Kinnaird of the firm Paul, Hastings argued the case for Mr. Padilla.  In a clear effort to pitch to the Roberts’ Court purported affinity for judicial minimalism, he began by articulated the “narrowest ground” for the resolution: “The narrowest ground on which this Court may reverse the Kentucky Supreme Court is to hold that mis-advice claims are cognizable under the Sixth Amendment.”  Justices Roberts, Alito, and Ginsburg all immediately asked questions about what conduct this principle covers – for example, does it extend to advice on whether the defendant should take the stand?  The concern is how the Court should decide which consequences receive Sixth Amendment protection and which do not.  Mr. Kinnaird said, “Your Honor, the issue here is simply the legal standard that applies to any of — any of these claims, and it would be the same two-part standard under Strickland v. Washington.”

Justice Kennedy raised a distinct concern – he worried that the court had no means to insulate its proceedings from ineffective assistance.  Drawing on principles in contract law, he asked whether the court could require the defendant to assume the risk of collateral consequences by including a warning in the colloquy that happens when the defendant pleads guilty:

You take the risk of any mis-advice, any misunderstanding, with respect to collateral conduct. That’s your risk, and it’s part of the guilty plea. If we said that, would that foreclose this kind of argument in your case?

Kinnaird maintained that the Sixth Amendment right to counsel put unique duties on the lawyer that do not similarly bind the trial court.  This response didn’t seem to satisfy Kennedy, who said, “Well, then there is no way the government or the court can protect itself against the — these consequences . . . .”

Justice Alito raised the last major strand of concerns with the Petitioner’s argument.  He worried that public defenders who handle hundreds of cases each year will have trouble remembering exactly what advice they gave their clients when they are hauled in to testify on ineffective assistance hearings.  Alito seemed particularly worried in the context where the defendant decided to plead guilty because there is no trial proceeding to refer to.  Mr. Kinnaird insisted that these proceedings would look like other Strickland hearings.

After the Petitioner closed, Michael Dreeben appeared on behalf of the United States.  He took the position that the Sixth Amendment does not impose upon defense counsel a duty to advise his client about collateral consequences, but that “mis-advice given by defense counsel on a material collateral consequence to a defendant” is a different concern. In a back-and-forth exchange with Dreeben, Chief Justice Roberts probed this position.  He posed the following question:

CHIEF JUSTICE ROBERTS: Won’t — won’t your test result in a net loss to defendants? I assume if this is adopted as a rule, the affirmative misrepresentation rule, then every lawyer is going to say what you said they should say: I’m here for the criminal case; I’m not telling you anything about anything else, as opposed to saying, sitting down and saying: Here’s what you need to know. And in most cases we expect the lawyer to do a professional job. If you have got an alien, he is going to tell him: Well, what — you know, this will cause you to be deported. Instead, every lawyer now is going to say: I’m not giving you any advice about anything else.

Dreeben responded,

No, I don’t think that it will lead to sort of defensive malpractice type of counseling where lawyers do not do the job that they feel that they should do, and experience tends to support that.

Alito riffed off of the Chief Justice’s question, arguing that indigent immigrant defendants will meet with public defenders who will tell them to go hire an immigration lawyer to answer their immigration questions.  Essentially, the conservative justices tried to spin economic arguments that undermined the liberal concern with the well-being of indigents on their own terms.

Once Mr. Dreeben finished on behalf of the U.S. government, Mr. Wm. Robert Long, Jr. argued for Kentucky.  The questions to the Respondent noticeably came from the ‘liberal’ Justices.  Justice Sotomayor – who had been silent until this point – fired the first question.  At the same time, she demonstrated her understanding of the considerations at play in a criminal prosecution:

Counsel, a plea is something more than: I’m guilty. It is a strategic decision not to put the government to its burden of proof. Your definition of voluntariness suggests that there is only one component to it, do I know what my rights are, as opposed to, do I know what they are and making an informed decision to waive those rights.  Your articulation of the rule leaves out the second component: Am I making an informed decision to waive those rights?

Justice Breyer attempted to corner Mr. Long by getting him to concede that had he been the lawyer and knew his client would be deported, he would have given informed his client.  As usual, Justice Scalia took the chance to clash with Breyer at oral argument:

JUSTICE SCALIA: Well, but assuming it’s a norm and that all lawyers do it [tell the client of the consequences], including those that know diddly about immigration law, the norm is to give bad advice. And here — here the norm was met, right?

After this line, Justices Stevens and Ginsburg asked a few more questions about what the State means when it says the Sixth Amendment does not apply to “collateral” consequences.  The bench then cooled, and the State finished the final few minutes of its presentations with relatively few questions.

In his rebuttal, Mr. Kinnaird may have made a statement that could snipe one of the conservative Justices and win a narrow opinion in his client’s favor:

CHIEF JUSTICE ROBERTS: So you can make a claim when the lawyer disavows the knowledge on the question? In other words, he is trying to be helpful, but he also warns the defendant.

MR. KINNAIRD: Yes. Under the broader rule, you would have a Strickland claim. It would be very hard to prevail on that because you would have to show that it was unreasonable for him not to investigate . . . .

Essentially, the Petitioner’s rebuttal was a timely reminder that Strickland is not exactly the easiest standard for defendants to meet.  Maybe that reminder will be enough to satisfy those Justices concerned that the floodgates to ineffective assistance will be opened if the Court recognizes that the Sixth Amendment imposes some obligations on defense attorneys to understand collateral consequences of a criminal prosecution.

My initial take from the oral argument was the same as Adam Liptak’s.  As he wrote in this piece in the New York Times:

Several Supreme Court justices on Tuesday appeared sympathetic to a criminal defendant who unwittingly agreed to be deported by pleading guilty to a drug crime. But the justices seemed uncertain about whether they could fashion a legal rule that would address extreme cases without causing turmoil in the criminal justice system.

Others have also commented on the oral argument.  SCOTUSblog’s take is here; law.com’s review is here.

I find this case extremely fascinating because it has implications in a number of important contexts:

  1. It directly implicates the scope of the Sixth Amendment right to counsel.  After listening to Chief Justice Roberts emphasize the importance of the attorney-client relationship (in the corporate context) in the Mohawk oral argument, I wonder how this Court will treat that same relationship in the criminal (and collateral) context.
  2. This case might turn out to touch on how we think about the rights of immigrants and whether we believe they can access a panoply of rights in the U.S. Constitution.
  3. Padilla could also have serious implications for immigrants in new communities in the U.S.  As immigrant populations continue to grow in parts of the country that are historically unfamiliar with cultural diversity, a ruling in Mr. Padilla’s favor will create a stir for local defense bars.  On the other hand, if the Court rules in Kentucky’s favor, immigrants will become more vulnerable to unfair policing practices that could result in their deportation.
  4. The outcome in this case will also give insight into whether the Constitution entails some notion of client-centered advocacy.  If the Court recognizes that the Sixth Amendment right to effective assistances governs Mr. Padilla’s claim, there will be (at least a limited) constitutional command for client-centered advocacy that recognizes that “collateral” issues have constitutional significance.
  5. Finally, a ruling in Mr. Padilla’s favor could cast some official doubt on the farcical notion that immigration proceedings are merely civil/administrative in nature.  It is this notion that underpinned the Supreme Court’s ruling in INS v. Lopez-Mendoza that an immigrant does not have the right to counsel at deportation proceedings.  Though we may never see that decision revisited, we could see an emergent recognition that immigrants deserve more serious protection under our Constitution and laws.  (For more on the civil/criminal distinction as applied to immigration cases, check out this post).

This Week at the Supreme Court

Posted in Cases, News by Bidish J. Sarma on October 13, 2009

This Tuesday and Wednesday, I’ll be watching four oral arguments at the Supreme Court (assuming I can get in line earlier enough both mornings).

Professor Berman the Sentencing Law and Policy blog notes in this post that it will be a big week for sentencing followers:

As detailed in this SCOTUSblog post and in this CrimProf post, the Supreme Court is hearing oral argument on three notable sentencing-related cases during this abbreviated week.  Specifically, these three (of my list of top 10) sentencing cases to watch this term are to be argued in the next two days (with links and descriptions from SCOTUSwiki):

To be argued Tuesday, October 13:

To be argued Wednesday, October 14:

  • Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime

I suspect that Spisak and Alvarez might get the most press attention, but I think Padillais the case that could prove to be the most consequential.  All three cases are likely to be quite significant if the Justices ultimately resolve them in “big” ways; all three may well be forgotten before long if the Justices embrace a minimalist approach to their decision-making.   As always, I heartily welcome and encourage pre-argument predictions and punditry on any or all of these SCOTUS cases in the comments.

Cert Petition on an Indigent’s Right to Counsel of Choice

Posted in Cases by Bidish J. Sarma on September 16, 2009

Rob and I decided that we would post our cert petitions up on the blog to distribute them widely and highlight legal questions we think are interesting and pressing.

Yesterday, we filed a cert petition on behalf of Jason Reeves.  As Rob noted in an earlier post, this petition deals with the issue of an indigent defendant’s Sixth Amendment right to counsel of choice (a right robustly protected for non-indigent defendants).

Here is the Question Presented:

Whether a defendant, who accepts state-funded assistance under Gideon v. Wainwright, 372 U.S. 335 (1963), retains a Sixth Amendment right to counsel of choice that a trial court must consider before it removes state-funded counsel.

The cert petition is attached as PDF here. Reeves Cert Petition

The Death Penalty in New Orleans: The Latest Sentence Further Conceals the Truth About the Government’s Charging Practices

Posted in News by Bidish J. Sarma on August 31, 2009

On August 29th – the notorious anniversary of Hurricane Katrina’s landfall in southeast Louisiana – an Orleans Parish jury handed down a death sentence for the first time in over twelve years.  The sparse use of the death penalty in Orleans Parish invites different reactions.  Some believe that juries in the jurisdiction are “soft on crime,” and claim that their unwillingness to impose the death penalty only emboldens criminals in one of the most dangerous cities in the country.  Others believe that these juries are sensitive to the complex realities that undergird the city’s deplorable crime rate.  While many speculate about what Michael Anderson’s death sentence means for the DA’s charging practices, in this post I want to explore a hidden issue that influences capital cases out of New Orleans.

People often say that, on a national level, Hurricane Katrina exposed racism that quietly resided under the surface of the popular national consciousness.  People from all over the country expressed shock and horror when they heard, for example, about the Danzinger Bridge Incident or the anti-African American violence in Algiers Point.  Unconscious/aversive/implicit racism still flourishes in our country, and it is an issue we must address.  But, as Katrina made obvious, racism in the South is not always so thinly-veiled.   One alarmingly common local response to the fact that Orleans juries rarely hand down death sentences is essentially that “they” “protect their own” without regard to public safety.  This crude view makes almost no effort to cover its racial undertones.  (When called out, a proponent of the view may claim that “they” simply means “the residents of Orleans Parish.”  But, we all know whom “they” really refers to: the African Americans living in the city.  Even if it is true that juries with greater African American representation give out fewer death sentences, the view implies that African Americans should not serve on capital juries, and should not make decisions about the crime that affects their lives and their community.).  Nevertheless, one may still expect locally-elected public officials and federal lawyers to decry racism as obvious as the kind entailed by the crude view.  Instead, those responsible for prosecuting crimes in the area actually embrace it.  In the process, they undermine the Fifth, Sixth, Eighth, and Fourteenth Amendment Amendments to the US Constitution.

Before this Saturday, an Orleans Parish jury had not sentenced a defendant to death in 12 years.  But, that does not mean that criminals convicted for crimes committed in Orleans have not received death sentences in that time.  Indeed, several have.  In federal court.

When cases are prosecuted in federal court – here, the Eastern District of Louisiana (which encompasses Orleans Parish) – the jury is culled from the district as a whole, not just the county or parish where the crime occurred.  Not surprisingly, this larger pool of potential jurors in the Eastern District has a far lower percentage of African Americans.  The decision to prosecute an Orleans case federally results in the transformation of the jury demographics from a parish that is predominantly (61%) African-American to a venire that is predominantly (65%) white.

My colleague and mentor, Ben Cohen, currently represents a capital defendant in federal court.  The case arises out of a homicide committed during an armed robbery.  His research has revealed some eye-opening information:

  • every single defendant sentenced to death in the Eastern District of Louisiana has been black;
  • every single defendant authorized as death-eligible in the Eastern District has been black;
  • every single defendant sentenced to death in federal court for a murder occurring during the course of a bank robbery has been black;
  • in every single one of these instances in which a black defendant has been sentenced to death for a killing during the course of a bank robbery, the victim has been white.

Ben’s client is the latest of 42 African-American and Hispanic federal capital defendants alleged to have committed a crime within the jurisdictional confines of Orleans Parish that has been prosecuted federally and have been certified as eligible for the death penalty.  His research initially indicates that no person has been charged with a federal capital crime for an offense that occurred within the Eastern District, but outside of Orleans Parish.  Not surprisingly, the predominantly white parishes outside of Orleans have had little trouble sentencing defendants to the death penalty, particularly African American defendants. (For example, we can look to neighboring Jefferson Parish.  Out of twenty-nine capital cases that have been indicted since 1998 and subsequently proceeded to a capital trial in Orleans, only one has resulted in a death sentence (less than 4%).  In Jefferson during the same period, fourteen cases have gone to trial and ten have resulted in death sentences (71%)).

Of course, the government may have legitimate reasons to prosecute some of these cases in the federal jurisdiction rather than in the parish.  But, the statistics raise serious questions about what really motivates prosecutors to take cases from Orleans to the federal level in the majority of these cases.

Lawyers need to think about what this practice means under the Constitution.  The Fifth Amendment protects due process, the Fourteenth Amendment ensures equal protection of the laws, and the Eighth Amendment prohibits death sentences based on the influence of arbitrary factors such as race.  The unprincipled (or, worse yet, the race-based) decision to prosecute in federal court arguably encroaches on all these constitutional rights.  Most interestingly, there is the Sixth Amendment.  Our laws are rooted in the belief that a defendant should be tried by representatives of the community in which the crime was committed – this is called the vicinage presumption.  Prosecutors in Orleans frequently trample that presumption and take the case to federal court, in the hopes of securing a less representative and more pro-death jury.

Since Katrina struck, the fear that crime will spread out from New Orleans to neighboring communities has only intensified.  This fear – rational or not – is unfairly exploited when jurors from those outside communities determine the punishment that an individual who committed a crime in Orleans should receive.

The sentence in Michael Anderson’s case certainly makes me wonder how the DA will allocate his limited resources across the tragic number of homicide cases in his office.  But, the sentence, along with the conventional wisdom about juries in Orleans Parish, conceals something much more invidious below the surface.  Cases that belong in the hands of Orleans Parish community members have been taken from them.  Prosecutors have stripped a community that must honestly and openly struggle with the ramifications of rampant crime of its right to decide its own cases.  The ideas that galvanize self-righteous prosecutors to dilute the local voices that would speak on capital cases must be confronted, and must be rejected.  Four years have passed since Katrina, but all that haunted southeast Louisiana before the storm continues to wreak havoc unabated.