Is Louisiana Broken?

Is Louisiana Broken?

 

This is a blog post that will require much amendment and addition. Sadly.  The headlines of just this last year…. Tell a sad tale. From an official thrown in jail for scoffing public record requests and court orders … to SCOTUS by per curiam opinion overturning yet another Louisiana criminal conviction “because the Louisiana courts have proven to be repeat offenders; they repeatedly fail to appropriately enforce prosecutors’ Brady obligations” ….. to Grand Isle…where it seems half the town’s government is under indictment.

Just today, June 30, 2016, a news report: The Louisiana Supreme Court suspended two 18th Judicial District Court judges due to misconduct.  Judge Free.  And Judge Best.  One for relieving a convicted sex offender of some probation time due to a personal relationship. The other for engaging in ex parte communications with alleged victims.

Sheriff Ackal of Iberia Parish, has been indicted for violation of federal civil rights laws.  “The case against Ackal stems from the alleged beatings of inmates who were detained while awaiting trials. Ackal allegedly ordered other officers to carry out attacks in the jail’s chapel because there are no security cameras in there. He is charged with two counts of conspiracy against rights and two counts of deprivation of rights under the color of law, and faces up to 10 years in prison for each count. Nine deputies have already pleaded guilty to related charges.”  see following link.  After meeting with the prosecutor, hE not only was recorded making anti-Semitic comments about the federal prosecutor, he apparently threatened to shoot him between his eyes.

[UPDATE  November, 2016. Sheriff Ackal was found not guilty on all four counts by a federal jury trial.  The investigation did reveal a lot of what Ackal describes as “rogue” cops who beat inmates and planted narcotics on suspects]

November, 2016, edit to add  Louisiana Supreme Court overturned a death sentence in the Crawford case, not because of a paucity of evidence (and there was), not because of suspect pathology reports/testimony, not because Cox argued to the jury that Jesus commanded the death sentence, not because Cox wrote a memo to the department of probation and parole, demanding Crawford suffer as much as humanly possible, but it was overturned because Blacks were systematically excluded from the jury.  The trial took place in the district with the most death sentences per capita than any other county/parish in the nation, some 77% of them Black defendants, tried by a prosecutor who obtained 1/3 of the death sentences between 2011 and 2015, and who, after much national publicity, did not run for district attorney last term.  Notably, a lost cause monument all but blocks the entrance to that courthouse

A civil lawsuit (though oddly and inexplicably, no criminal action by local law enforcement) is still is making its way, at the speed of a snail stuck in quicksand, against caddo parish commission and commissioners, for flaunting the Louisiana constitution and its own home rule charter, voting for themselves against the dictates of law a generous retirement fund, with up to sixteen percent taxpayer matching funds, raises, and a $15,000 annual travel fund.  Interestingly, an elected official from another parish got a taste of the law for doing the same type of thing… (See link above)…yet in caddo?  Seems different rules prevail.  The commission didn’t stop dipping into public fisc for retirement until after the second letter scolding them from the Louisiana legislative auditor office

Nevermind the shameful manner the Louisiana legislature ignores the funding crisis of the indigent defender offices. I’ve watched  in court   As judges advise indigent defendants of their right to a lawyer, free of charge, if they cannot afford one and turn around in the next breath and order the poor to pay the indigent defender office as much as $1,000.

And, once again, another death penalty conviction is up at the Supreme Court out of Louisiana because yet again, prosecutors withheld material evidence from the defense.  Of course they did.  Per the linked article:

“IN A LOUISIANA case now pending before the U.S. Supreme Court, lawyers for a death row inmate named David Brown are asking the justices to put a stop to what the outspoken jurist and author Alex Kozinski has called an “epidemic” of prosecutorial misconduct. One of the most common forms of such misconduct is the withholding of evidence that might exonerate or mitigate the guilt of a defendant. Failure to turn it over, according to the court’s seminal 1963 decision Brady v. Maryland, is a violation of due process. Brown’s lawyers argue that nothing less is at stake in their client’s case than the future of Brady and the right to due process in criminal proceedings.

Although prosecutors have bristled at Kozinski’s charge, there is certainly plenty of evidence to back up his claim. According to the National Registry of Exonerations, a project at the University of Michigan Law School, 933 of the nearly 1,800 exonerations to date involve official misconduct by prosecutors, police, or other government officials. Thirty-five of those exonerations come from the state of Louisiana alone, where prosecutors have a dismal record of complying with their legal obligations. According to Pace University School of Law professor Bennett Gershman, a leading expert on prosecutorial misconduct, many of Louisiana’s prosecutors “have an incomplete and even warped understanding of the Brady rule, and their enforcement of their Brady duty is deficient.” In Kozinski’s estimation, it is the duty of the courts to solve the misconduct problem. “Only judges can put a stop to it.”

For more on the brilliant jurist, Alex Kozinski, read this article by Slate and more at this LA Times article, which also links to the youtube video of oral argument.  (Yeah, the Ninth Circuit now uploads oral arguments to a youtube channel!).

[update   SCOTUS declined to hear Brown’s case and the Louisiana court ruling which overturned a lower court’s reversal of the death penalty, now stands]

Not Louisiana courts: they never get it right under Brady. They give prosecutors  judicial license to do as they wish, without regard for the law. The courts here made up their own rule: defense must show the verdict would have been different had the prosecution not violated due process   (Worse, some Louisiana judges treat a Brady violation as a mere civil discovery transgression and apply a harmless error standard).

Brady v. Maryland has been around. A long time. No sitting judge can not know it.  Here is the holding:

“‘The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment,’ Justice William Douglas wrote for the majority.”

The test is this:  “Evidence is material under Brady if it creates “a ‘reasonable probability’ of a different result.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). “A reasonable probability does not mean that the defendant ‘would more likely than not have received a different verdict with the evidence,’ only that the likelihood of a different result is great enough to ‘undermine[] confidence in the outcome of the trial.” Smith v. Cain, 132 S. Ct. 627, 630 (2012) (quoting Kyles, 514 U.S. at 434). To say that the undisclosed information wasn’t material, a court must conclude that the other evidence was so overwhelming that, even if the withheld evidence had been presented to the jury, there would be no “reasonable probability” that it would have acquitted. This standard isn’t satisfied if “the State’s argument offers a reason that the jury could have disbelieved [the undisclosed evidence], but gives us no confidence that it would have done so.” Id.”

U.S. v. Olsen, No. 10-36063 (9th Cir. 2013)(Kozinski, J., dissenting). Sadly, too many judges get the test  dead wrong.

What happened to the judicial system here?  At one time, Louisiana had brilliant jurists.  True jurists.  Now?  It seems the bench is filled with Just for oil and gas industries and mischievous prosecutors.

Louisiana:  Broke and squandering public fisc and taking from the poor, Constitution be damned, for public misdeeds….  And worse, monetizing justice for self interest   The nation’s incarceration capital, Louisiana, profitized every aspect of criminal justice  it’s just another derivative market to line pockets

Until we take the profit out of so called criminal justice, nothing will change. (P.s.  Someone needs to ensure the DDA gets this DOJ memo)
The DOJ gets it.  Finally  after Ferguson  … But how can the DOJ possibly monitor every aspect of Louisiana’s “justice” system?  It has a nation to run.

Meanwhile, our legislative auditor looked into excessive fine enforcement across Louisiana towns back in 2007…. and did nothing.  read the report and know that the legislature…did NOTHING. It allows these backwoods Boss Hogg backwood justice courts (only Louisiana and Ohio have “mayor’s courts”) AKA mayor’s courts to run roughshod over folks.  I haven’t read it yet, but a Louisiana lawyer wrote a book detailing the constitutional failure of these mayor’s courts,

available for about $4.00 here.  Screen Shot 2016-07-07 at 2.28.19 PMThis is the book’s synopsis:

The Mayor’s Court is Louisiana’s most numerous type of court, with about 250 of these courts across the state, yet very little appears to be known about them. Out of the fifty states, only Louisiana and Ohio still use these courts. Under this system of informal tribunals, a town mayor essentially acts as prosecutor, judge, and jury to enforce municipal ordinances. There is no requirement that a mayor presiding over one of these courts should possess a law degree or have any legal training. Likewise, the inherent duty of mayors to raise revenue creates a potential bias that could cause mayors to convict defendants solely for financial gain. Although their existence is vested under the Louisiana Constitution, there is very limited statutory guidance or procedural safeguards to govern these courts. Many of the few attempts that have been made to interpret laws governing these courts have been misguided and have lead to incorrect court decisions. As a result, the possibility exists for defendants before these courts to be unfairly convicted. This book provides an overview of the mayor’s courts in Louisiana and examines a few due process concerns that arise from these courts’ existence.

A woman spent SIX YEARS fighting an unconstitutional stop in one little Louisiana town that rakes in $$$ with unconstitutional practices.

Contradictorily to its  “Excessive Fines” report on mayors courts, linked above, the Louisiana legislative auditor encouraged district courts to be more aggressive in collecting fines and court costs, which the auditor estimated to exceed $100 Milliom a year.  Gretna got the message.  It is now the arrest capital of the nation.

Louisiana. I. Am. Looking at you. The incarceration capital of the world.

Louisiana — Highest sales taxes in the nation.

Shreveport — highest property taxes in the state.

Every town here rapes its citizenry and visitors. Taxing the hell out of everyone, even its poorest, with fines, penalties, court costs. Why? To line city coffers so it can contract with favored ones? What kind of government does that? A bad one. A very bad one.

A recent article exposed the excessive practices of Gretna, Louisiana. Gretna police previously made horrific headlines during Katrina, firing on folks who attempted to get out of flooded New Orleans by walking across the bridge go Gretna. Gretna police stopped them. With force. Now Gretna made headlines, again.  This time for its excessive policing and fine practices, imposed on its own residents. It is the arrest capital of America.

“An expensive, years-long entanglement with this [Gretna] system can begin with an alleged infraction as minor as turning without a blinker. Eric Cado, a 25-year-old black man, was pulled over in November 2011 in Jefferson Parish for not wearing a seatbelt. After a series of missed court dates, unpaid fines, subsequent warrants for his arrest and a day in jail, Cado owed $1,200 plus the $500 bond for his release, which he finally paid off in 2014.”

And how can DOJ effect change, when the supreme court itself  Facilitates police abuse?

Just recently, Justice Thomas … Gutted the Fourth Amendment, applying a whole new test…that contravenes fifty years of precedence since Terry v Ohio, in the startling ruling of Utah v Strieff.

And while the courts and prosecutors sit on their hands, another man is shot dead in Louisiana.

It’s time.  Time to completely decriminalize minor traffic and other infractions. Expired plates. Expired Motor vehicle inspection stickers. Walking in the street, even when there’s no functional properly maintained sidewalk.  Loud music.  Simple trespass.  Loitering. etc.

They’re all just excuses to profit off of others minor mistakes. To hassle people and to kill black people. Just take a picture or write a report, and send a ticket in the mail.

As discussed in another blog post, Louisiana can’t or just won’t regulate oil and gas. But it can manage to criminalize the most innocuous minor of behaviors.

Not for enjoyment,

Kathryn S. Bloomfield

p.s.  Regarding the featured image:  I found it via http://www.writerscafe.org/writing/jasonx72/247709/  After a Google search for copyright free images of lady liberty crying.  I cannot confirm it is copyright free. I provide the source I used, but do not know if that is the owner. If it is not copyright free, I will immediately take it down.

 

 

BIG NEWS: Montgomery v. Louisiana

BIG NEWS:  Montgomery v. Louisiana

This is a big deal. If you know of anyone, serving life without parole, who was convicted when they were 17 (or younger), they are entitled to relief. SCOTUS has ruled that Miller v Alabama.10-9646g2i8 is retroactive.

They need to petition to the court of conviction for an order directing the parole board immediately to set a parole review date.  Use State v. Shaffer, 77 So. 3d 939 – CourtListener.com as guide for text of order.

Montgomery v. Louisiana

“Holding: 1) The Supreme Court has jurisdiction to decide whether a state supreme court correctly refused to give retroactive effect to the Supreme Court’s 2012 decision in Miller v. Alabama, prohibiting mandatory sentences of life without the possibility of parole for juveniles; and (2) Miller announced a new substantive rule that, under the Constitution, is retroactive in cases on state collateral review.

JudgmentReversed and remanded, 6-3, in an opinion by Justice Kennedy on January 25, 2016. Justice Scalia filed a dissenting opinion, in which Justices Thomas and Alito joined. Justice Thomas filed a dissenting opinion.”

Interesting cases I’ve worked on

Interesting cases I’ve worked on

I’ve been a lawyer since 1987.  While my career started in the high powered high finance world of BIG business dealings…multi-million dollar office/shopping mall and other types of real property transactions, loans, loan closings, and very quickly, loan work-outs and foreclosures due to the economic dive Louisiana took in the late 1980s, it quickly evolved into high profile litigation.  First, in big business Chapter 11 bankruptcies, representing large often multi-state debtors.  Then, ultimately, federal civil rights work.

The following are but a few facets of the most interesting cases in which I have been involved.


Appointed Special Deputy Prosecutor for Boundary County, Idaho, after the Ruby Ridge siege and killing of Vicki Weaver by an FBI agent.  The issue of sovereign immunity arose…could a state prosecute a federal agent in state court for murder of a state citizen.  While the Ninth Circuit answered yes, the decision was vacated after a new prosecutor for Boundary County was installed, er er er, elected, who promptly dismissed the charges.  The brief was an intellectual challenge of the best sort to write.  And, the opening of the opinion by the eloquent Judge Kozinski cannot be missed:

It was, in the words of Justice Kennedy, the genius of the Founding Fathers to “split the atom of sovereignty.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). What this means in practical terms is that, within the territory of every state, two sovereigns–the state government and the federal government–reign cheek to jowl. From the dawn of the Republic, this unusual arrangement has led to a fair degree of conflict, as the actions of one sovereign have encroached on the prerogatives of the other. See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). This conflict reflects, not the defects of the system, but its virtues, because the beneficiaries of these competing sovereignties are the citizens of the United States. As Alexander Hamilton foresaw:

Power being almost always the rival of power, the general government will at times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. . . . If [the people’s] rights are invaded by either, they can make use of the other as the instrument of redress. The Federalist No. 28, at 181 (Alexander Hamilton) (C. Rossiter ed., 1961).

Click here for full opinion.  idahovhoriuchi


Guantanamo Bay and its use by the United States as a prison for detainees picked up in Afghanistan and neighboring areas, often on nothing but the word of a sheep herder paid a bounty, which would feed the family for decades.  Along with myriad highly respected members of the bar, a former U.S. Attorney General, and clergy, we instituted the first lawsuit to challenge the denial of habeas corpus relief.  Many of us, myself included, experienced criticism and far worse, series of death threats, for bringing this action.  Eventually, as more of these actions were filed, the federal court consolidated these cases and transferred all of them to the jurisdiction of the D.C. Circuit, where other lawyers took over. Eventually, the right to habeas was upheld, and a procedural system was installed at the prison.

COALITION OF CLERGY, LAWYERS, AND PROFESSORS; Haim Dov Beliak; Robert A. Berger; Kathryn S. Bloomfield; Erwin Chemerinsky; Ramsey Clark; Allen Freehling; Steven Jacobs; Harold S. Lewis, Jr.; Hugh R. Manes; Arthur L. Margolis; Kenneth B. Noble; George Regas; Joseph Reichman; Lawrence W. Schilling; Carol A. Watson; Marion R. Yagman; Stephen Yagman, on behalf of persons held involuntarily at Guantanamo Naval Air Base, Cuba, Petitioners- Appellants,

v.

George Walker BUSH; Donald H. Rumsfeld; Richard B. Myers; Gordon R. England; James L. Jones; Robert A. Buehn; Michael Fair; Ellen Mustain; Michael Lehnert, Respondents-Appellees.

No. 02-55367. Decided: November 18, 2002

 

Click here for opinion. COALITION OF CLERGY LAWYERS AND PROFESSORS v BUSH FindLaw


The rights of people to be left alone as they walk down the street, whether on parole, probation, or not, especially when the seizing officers have no reasonable suspicion, no probable cause, and no knowledge of status.  While successful then, I wonder whether success would again prevail apropos the recent pronouncement on the Fourth Amendment by Justice Thomas, who altered the legal landscape with a new standard of flagrant misconduct, discussed in another blog post, which post I intend to amend as I digest that opinion.

Moreno v. Baca, No. 02-55627, 9th Circuit (2002).

I will upload the briefs on summary judgment in the district court and on appeal at a later date.  Click here for opinion: Moreno.v.Baca.0255627

Other opinions on cases of interest are: Vanke.v.Block.JCCA00100003 and dang.v.cross.422 F3d 800  Vanke involved the policy of LA Sheriff of “over detention” of inmates…holding inmates despite orders of release or beyond release dates to “check for warrants and holds”  and the decision addresses attorney fees. The Dang decision addresses the error by the trial court in refusing to give a jury instruction that punitive damages are recoverable if jury finds oppressive conduct, and also addresses attorney fees.


This case involved an out of control sheriff’s deputy, who thank goodness was fired, and his two minions.  An eyewitness account of the aftermath of the beating three deputies put down on this man in front of his wife and children was horrifying:  she said “it looked like someone killed a cow.”  8-7 OPP MSJ RAFAEL FINALx

 

As always, enjoy,

Kathryn S. Bloomfield

Making Money in New Ways

Monopoly on Life – The Musical Example Pretend for a moment that we live in a world where there is only one grocery firm, ChowMart. Because ChowMart has a monopoly on the sale of food to you …

Source: Making Money in New Ways

This gentleman emailed a generous compliment on my June 2016 Presentation, Artists: protecting creative works to Works in Progress Louisiana

His article is fascinating; I recommend a good read.

Enjoy,

Kathryn S. Bloomfield

Is the Fourth Amendment Reasonableness Standard Dead? Replaced with a football call of “Flagrant Misconduct?”

Is the Fourth Amendment Reasonableness Standard Dead? Replaced with a football call of “Flagrant Misconduct?”

On June 20, 2016, in a 5-3 opinion written by Thomas, J., the Supreme Court turned the fourth amendment inside out in a criminal case. Thomas found no “flagrant misconduct.”   Cops, without probable cause or reasonable suspicion, seized a guy and searched him. And prosecuted him on felony drug charges.

Thomas wrote, and four justices joined, and engaged in mental gymnastics that ignores long standing fourth amendment law to rule that because the guy had an outstanding warrant anyway, although for a minor traffic violation and wholly unknown to the officers that accosted the guy, the government did not engage in flagrant misconduct and the convicting evidence was held properly discovered.  Nevermind the illegal seizure and search.   After shaking the guy down, the government dug up an entry the government made into a database…the issuance of a warrant for a minor traffic violation   Thus, according to the majority, the shake down was not flagrant misconduct, and did not warrant exclusion of these ill gotten gains.  Because that entry  by the government   Into a database   Stripped this guy of all fourth amendment protections against officious transgression.

Nevermind that the databases that store warrant information are often out of date, warrants are stale. Nevermind that the standard warrant entry states “call xxx-xxx-xxxx to confirm” and no one bothers until after cuffing and stuffing the target. Nevermind that it has been the law of this nation that cops cannot accost an individual, either for a Terry investigative detention or a full blown seizure (an arrest), without articulable facts KNOWN to the officer that justify the seizure. Poof, all that law….gone with the flag of flagrant misconduct.

What happened to the fourth amendment analysis and standard of objective reasonableness? Is Terry v. Ohio, 392 U. S. 1, 21 (1968) now dead, too? Gone is the requirement that the government have articulable facts that justify trampling constitutional rights? Is flagrant misconduct more dubious than deliberate indifference?  Perhaps we need to ask a football referee…. flagrant misconduct.  Where did he come up with this?  Oh, football.  It is a penalty.  Great.   Football rules now apply to the government arena.

Utah v Strieff ushers in a new scary era   One in which it is the court’s job to justify illegal official conduct   In any manner possible.

Status, as determined by the government, not with a hearing, but with the mere issuance of a warrant for a minor infraction, even unknown to officers, now strips one of their constitutional rights. In that case a minor traffic violation. What next? A parking ticket? A zoning violation? An instigator? A critic? A malcontent?

The decision turns the long established fourth amendment standard of objectively reasonable, into “flagrant misconduct” a standard even more dubious than deliberate indifference, apposite to those CONVICTED and imprisoned for a crime.

Has this 5-3 decision created an even bigger problem? Rendering unstable the entire justice system? Maybe. Scalia’s legacy (one of) to civil rights was Heck v Humphrey (discussed here). If success in a civil rights action would impugn the integrity of a criminal conviction, no civil rights claim had yet accrued. No matter how vile the fourth amendment violation. This is because the fourth amendment standards were the same across criminal and civil lines.

This decision eliminates that similarity. There are now two standards. One for criminal. “Flagrant misconduct”. And one for civil. Objective reasonableness.

Can this guy now bring a civil rights action under the objective reasonableness standard and prevail….notwithstanding any conviction he may now suffer because success in his civil action would not undermine nor impugn the criminal conviction because the criminal conviction would stand because of the more dubious apposite standard of flagrant misconduct

Flagrant misconduct is a standard heretofore non existent in constitutional claims analysis. It sounds and appears more dubious than deliberate indifference, the standard apposite to those already convicted and imprisoned.

Now, the government. Can just issue a warrant. For a minor traffic violation. Just a warrant. No requirement it be served. Just entered into the database. No hearing. Nothing. Just a warrant.

With that on file, officers are now free to trample constitutional rights to effect a conviction, even if they don’t know of the warrant.

Facts become irrelevant.

Personhood is irrelevant

Our long standing guaranteed constitutional rights…gone.

Government classification becomes everything

This. Is. Horrifying.

what can I say; apparently, Thomas views cop activities as a football game. Throw the flag…flagrant misconduct.

Justice Sotomayor, in which Justice Ginsberg joined in Parts I, II, and III, wrote a smack down dissent (starts at page eleven of the published ruling) of epic proportions. Here’s to the dissent.

Kathryn S. Bloomfield

artists: protecting creative works

artists:  protecting creative works

On June 11, 2016, I delivered a presentation to Works in Progress Louisiana, a non-profit organization funded by grants and donations formed by artists to assist artists in the commercial ventures of creativity.  Upon being awarded a particular grant, I was asked to give a presentation on intellectual property.

Intellectual property is an amorphous, ever growing area of law, and almost devoid of clear cut answers.  Over the course of several months, I gathered information on this amorphous topic of artists and intellectual property.  And, finally, made the final focused push to organize all this information into a presentation:  an overview of intellectual property for creatives.

Intellectual property (sometimes referred to as IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.

Intellectual property includes:  trademark/tradename; copyright; and patent.  Related concepts, although not technically “intellectual property” are trade secrets, confidentiality agreements/clauses, and model releases. These latter items are constructs of contract and, trade secrets, of course, are constructs of practice of your business (proprietary formulations and practices) for which you in fact maintain secrecy, through contracts and otherwise, thereby offering some protection over your proprietary information. It is notable that in May, 2016, a new federal law was passed, creating a federal cause of action and federal jurisdiction of and over trade secret violations.

My presentation focused on an overview of federal law on intellectual property:  trademark/name, copyright, and patent.  It also touched on trade secrets and other matters, including confidentiality agreements/clauses.  Creativity and intellectual property are each as limitless as the other. There is no way in a two hour talk or one presentation that the entirety of law that is significant to creative artists can be conveyed. However, the presentation is stocked full of information and is an excellent overview of intellectual property. I included throughout the presentation links to useful sites.  The last two pages itemize numerous useful links.

You can view the powerpoint online here:

To download, visit this link.

Please note that I will be updating this presentation from time to time; and, in fact, already have numerous times since the June 11, 2016, presentation.

To ensure you have the most recent version, expand the powerpoint presentation embedded and use the download/print option from that page.

Enjoy!

Kathryn S. Bloomfield