THE. Kennedy v. Louisiana The Constitutional Commitment to decency and restraint By: Ben Cohen, Capital Appeals Project

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1 THE DEFENSE NEVER RESTS Vol. 10 Number 2 July 2008 Published by the Federal Public Defender s Office for the Eastern District of Louisiana Kennedy v. Louisiana The Constitutional Commitment to decency and restraint By: Ben Cohen, Capital Appeals Project On June 25, 2008, the United States Supreme Court held, in Kennedy v. Louisiana, that Louisiana's statute providing for the death penalty for a non-homicide crime of child rape was unconstitutional. Kennedy v. Louisiana, 554 U.S., (2008). The ruling broadly proclaimed that the Eighth Amendment bars the imposition of the death penalty where a crime does not result, and was not intended to result, in the victim s death. Jeff Fisher, of Stanford Law School, filed certiorari and argued the case, along with lawyers from the Capital Appeals Project, and pro bono counsel Martin Stern and Ravi Sinha of Adams and Reese, LLP. The landmark decision occurred as a result of the work of a broad coalition of groups, several of which are cited in the majority opinion. See id. at 28, citing Brief for Louisiana Association of Criminal Defense Lawyers et al. (discussing the impact of the number of capital rape prosecutions on indigent defense and the administration of the justice system in Louisiana); id., at 32, citing Brief for National Association of Social Workers et al., INSIDE Pictured: Billy Sothern, Jelpi P. Picou, G. Ben Cohen, Jeffrey L. Fisher New Orleans hosts Federal Public Defender Conference..3 National Sentencing Policy Institute.4 Supreme Court Updates..6 Fifth Circuit Updates..6 New Fifth Circuit Judge.8 Oral Arguments Announcement...8 Crack Retroactivity Progress Report..8 Federal Public Defender s Office Welcomes New Employees...8 Recommended Training Programs..9 Death By Trial - Death Penalty CLE Seminar.10 Death By Trial Registration Form..11 Message Board...12

2 Kennedy v. Louisiana (observing The experience of the amici who work with child victims indicates that, when the punishment is death, both the victim and the victim s family members may be more likely to shield the perpetrator from discovery. ); id. at 33, citing Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 5 17 ( The problem of unreliable, induced, and even imagined child testimony means there is a special risk of wrongful execution in some child rape cases. ). Unquestionably, briefs by the American Civil Liberties Union et al (noting the sordid history of racism in the administration of the death penalty for rape in America, and the South particularly) and Leading British Law Associations et al. (noting the total abandonment of the death penalty for non-homicide offenses by civilized nations) formed a backdrop to the decision. The Court found a national consensus limiting the death penalty to offenses in which the offender intends to kill, and does so. The Court acknowledged that the national consensus is not confined to tallying the number of States with applicable death penalty legislation, but found it significant that in forty-four jurisdictions, a defendant could not be executed for child-rape of any kind. Id. at The Court like those of us representing Mr. Kennedy -- found it significant that no person had been executed for a non-homicide offense for over forty years. The opinion issued broad language concerning the imposition of the death penalty, observing that the basic precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense. Kennedy v. Louisiana, 554 U.S., 8 (2008). The Court ruled: As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim s life was not taken. Id. at The Court held that the evolving standards of decency imposed a necessity to constrain the use of the death penalty. Id. at 28. In language that appears to predict a continued reluctance to administer the death penalty, the Court observed: The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this state of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim. Id. Finally, with words offering great significance to all capital cases, the Court observed: When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint. Id. Almost two years before Patrick Kennedy was sentenced to death in Jefferson Parish Louisiana, Neal Walker then director of the Capital Appeals Project -- ed the entire staff of CAP warning us that this was the case that would test the validity of the statute, and the need for careful attention of activity in Louisiana and in other states. Prosecutors were claiming that these were the worst injuries ever suffered by a rape victim in Louisiana. Emily Maw dived into tracking capital rape prosecutions in Louisiana while John Holdridge ultimately took the helm at overseeing this monitoring, confronting (and defeating) legislation as it emerged in placed like Montana, Colorado, Mississippi and Utah, defeating legislation with coalitions of child-advocates, fiscal conservatives, and those opposed to the death penalty. When Patrick was sentenced to death, Neal -- with Marcia Widder -- went to the district court in Jefferson Parish, meeting with Patrick, and assuring him that CAP would represent him rather than advance our own interests in the case. He also promised to play music with Patrick. Then Katrina hit and things got re-shuffled, and Jelpi Picou and I were left trying to fill Neal s shoes on the case. First Martin Stern, came aboard to help, and then Jeff Fisher. Beyond Martin s scathing appellate focus, having lawyers from Adams and Reese LLP, standing next to us, and with Patrick, at the Louisiana Supreme Court signified so much. Jeff made it clear that we were in this, not just to be at the Supreme Court but to win there. And all of these parts, helped fill these shoes that were way too big, way too experienced for me to wear. This is a picture of us at the Supreme Court, after argument in the Kennedy case. I am almost certain that Jelpi and I were thinking the exact same thing; this mixture of relief, hope for Patrick, sadness for the victim -- L.H. who appeared to be used as a political device throughout much of the proceedings -- more relief, and always, missing Neal. I will be available to discuss the future implications of the Kennedy case on Tuesday, July 22 at 8:00 AM in the conference room in the basement of the Hale Boggs Federal Building. 2

3 The Defense Never Rests July 2008 New Orleans Hosts Federal Public Defender National Conference In late May, Chief Judge Ginger Berrigan joined Virginia Schlueter in welcoming over 500 assistant federal public defenders to New Orleans for an advanced training seminar sponsored by the Federal Judicial Center. The Federal Public Defender s office hosted a dinner for attendees with an all you can eat crawfish and shrimp boil. As you can see, the participants quickly picked up the art of peeling crawfish - they could do so while standing around and listening to live music after drinking a beer or two. After the conference, many attendees contributed to our rebuilding efforts by volunteering with the Habitat for Humanity housing projects. President of the National Association of Federal Defenders, Carlos Williams, presented awards to outstanding Assistants. Federal Public Defender, Virginia Schlueter, welcomed the 500 Assistant Federal Public Defenders. 3

4 National Sentencing Policy Institute Last week a representative of our office, Gary Schwabe, who is handling the crack resentencings, attended the National Sentencing Policy Institute held in Long Beach, California presented by the Federal Judicial Center. The U.S. Sentencing Commission provided some interesting statistical information, some of which is included below. In the Fifth Circuit, the district courts follow the guidelines approximately 70 % of the time. This is one of the highest within guidelines sentencing rates. Within Range 72.4% Within Range 70.3% Gov t Below includes 5K requests, Rule 35 s, a n d F a s t T r a c k immigration cases. Other Below are defense sponsored departure and variance requests. Above Range indicates the court s decision to vary or depart upwards. While the courts in the Fifth Circuit tend to follow the guidelines, average sentences have actually decreased from 41 to 37 m o n t h s f o l l o w i n g Gall/Kimbrough. 4

5 National Sentencing Policy Institute Within Range 46.0% Within Range 46.3% Career offender is an area ripe for requesting reductions. Nationally, courts have sentenced within range in career offender cases less than half the time. The courts have granted defense reductions in 20% of the cases. If you are saddled with a career offender, you may want to request a variance and use this statistic to support the request. The average sentence in drug cases in the Fifth Circuit has actually gone down 3 months since Gall/Kimbrough. You will also note that the average drug sentence (65 months) is among the lowest of the circuits. 5

6 Supreme Court Updates Career Criminal Enhancements United States v. Rodriquez, No (U.S. May 19, 2008): The Armed Career Criminal Act (ACCA), 18 U.S.C. 9249e) prescribes a 15-year minimum sentence for persons who violate 922(g) and have three previous convictions for a serious drug offense. The statute defines a serious drug offense to include a state drugtrafficking conviction with a maximum term of imprisonment of 10 years or more. The Supreme Court now holds that recidivism enhancements must be applied to the predicate state conviction to determine whether it meets the 10-year threshold. Statutory Interpretation United States v. Ressam, No (U.S. May 19, 2005): 18 U.S.C. 844(h)(2) prohibits carrying explosives during the commission of a federal felony. In Ressam, the defendant tried to enter the United States from Canada by ferry with explosives hidden in his car. At Customs, he lied about his citizenship and name. Eventually, customs officials found the explosives in his car. He was convicted of false statement, 18 U.S.C. 1001, and carrying explosives during the commission of the false statement offense, 18 U.S.C. 844(h)(2). The Ninth Circuit reversed the 844(h)(2) conviction because the defendant did not carry the explosives in relation to the false statements felony. The Supreme Court disagreed. It held that during denotes a temporal link only, so carrying explosives contemporaneously with making false statements was enough to support the 844(h)(2) conviction. Obscenity United States v. Williams, No (U.S. May 19, 2008): The Supreme Court upheld 18 U.S.C. 2252A(a)(3)(B) against a challenge that it reached too much constitutionally protected speech and was impermissibly vague. The statute prohibits offers to provide and requests to obtain child obscenity and pornography involving actual children. Sentencing Irizzary v. United States, No (U.S. June 12, 2008): Notice of departure is no longer required prior to sentencing hearings. In light of the decision in Booker, making the guidelines advisory, the Supreme Court found that defendants due process concerns are no longer at issue. The Court further held that the parties have ample opportunity to present any and all relevant information to the court prior to the ultimate sentencing decision. Fundamental Rights District of Columbia v. Heller, No (U.S. June 26, 2008): District of Columbia s complete ban of handguns and functional guns in the home struck down. The District s law banned ownership of unregistered handguns and required any other firearm stored in the home to be disassembled or trigger-locked. After a linguist and historical analysis of the Second Amendment, the Court held that the Second Amendment guarantees individuals a fundamental right to keep and bear arms. The opinion recognized this decision will have implications on other presumptively lawful regulatory measures concerning gun possession, however declined to comment further. Fifth Circuit Updates Sentencing United States v. Sanchez, No (5 th Cir. May 13, 2008): Failure to consider the proposed guideline range was plain error. Defendant was charged with and pled guilty to one count of failure to register pursuant to SORNA. At sentencing, the district court found no applicable guidelines under the relatively new statute, so it looked to the statutory maximum and 18 U.S.C. 3553(a) and imposed a sentence of sixty months. Prior to defendant s sentencing, the Sentencing Commission promulgated proposed guidelines for this violation. If the proposed guidelines had been considered, the defendant s range would have been between twenty-one and twenty-seven months, thus affecting his substantial rights. 6

7 United States v. Gould, No (5 th Cir. May 21, 2008): Mere instinctive flight from police does not justify reckless endangerment enhancement, even if it results in armed pursuit. The enhancement requires additional facts, such as fleeing across four lanes of a busy interstate highway. United States v. Looney, No (5 th Cir. June 23, 2008): Warning that prosecutors must not abuse their discretion in deciding when to bring multiple 924(c) counts in one indictment as conviction on the second count adds a mandatory minimum of 25 years to the sentence. Prosecutorial Misconduct United States v. Gracia, No (5 th Cir. March 31, 2008): Prosecutor s improper comments constituted plain error. In its rebuttal, the government (1) argued that [his] witnesses were very, very credible; (2) posed a rhetorical question about why would agents lie; (3) asked the jury to respect the efforts of law enforcement and believe the agents; and (4) cautioned the jurors that to acquit the defendant the jury essentially would find that the agents conspired to wrongfully convict Mr. Gracia. Despite defense counsel s failure to object to prosecutor s remarks, the court found that all four comments during rebuttal affected substantive rights of the defendant and thus granted a new trial. United States v. Williamson, No (5 th Cir. June 24, 2008): Reversed and remanded for new trial in light of Batson violation by the prosecution. Defendant was charged with one count of possession with intent to distribute. The district court questioned the venire persons, inter alia, on their respective contacts with those who use illicit drugs. During its voir dire, the government questioned the only two African American members of the panel regarding their association with drug users. Defense objected to government s peremptory strikes of these two jurors. The record showed a number of non-black venire members had similar associations with addicts, but were neither questioned nor struck by prosecution. Held that the proffered explanation was discriminatory in violation of defendant s substantial rights. Ineffective Assistance of Counsel United States v. Hayes, No (5 th Cir. June 20, 2008): Defense counsel s failure to object to career criminal enhancement, in this case an additional 150 months, was demonstrably prejudicial. The PSR revealed two prior Louisiana state law convictions for which Mr. Hayes was sentenced concurrently on the same day. At his original sentencing, Mr. Hayes received 360 months based on the career criminal enhancement. Evidence elicited at a resentencing hearing revealed Mr. Hayes state cases were functionally consolidated and, at the state level, his state convictions would be viewed as a single conviction. Failure of counsel to ascertain this information prior to Mr. Hayes original sentencing warranted reversal. United States v. Cano, No (5 th Cir. March 10, 2008): Invocation of right to selfrepresentation requires a hearing. Defendant timely requested court to allow him to represent himself at his sentencing hearing. The Fifth Circuit held that because Mr. Cano clearly and unequivocally invoked his right to selfrepresentation the district court was required to conduct a Faretta hearing in order to determine whether the invocation was knowing and voluntary. Right to Self-Representation 7

8 New Fifth Circuit Judge Judge Catharina Haynes was confirmed on April 10, 2008, to the U.S. Court of Appeals for the Fifth Circuit. Catharina Haynes is a former state court judge having been elected judge of the 191st District Court in Dallas in After serving as a state court judge, Judge Haynes returned to private practice at the law firm of Baker Botts, LLP, where she worked in the litigation department. Judge Haynes graduated second in her class from Emory University School of Law and received her J.D. with distinction at age 22. She served on the Emory Law Journal. She graduated first in her class from the Florida Institute of Technology, earning a B.S. in psychology at age 19. Judge Haynes has been active in numerous bar associations. Judge Catharina Haynes Oral Arguments Announcement The U.S. Court of Appeals for the Fifth Circuit announced that beginning with cases heard in late May 2008, recordings of oral argument are available to the public on the Internet at Oral argument recordings generally are available late in the day argument is held. Listeners using Windows Media software can search for an argument by case number, date, case title or attorney s name. The Fifth Circuit plans on keeping archived arguments available for an indefinite period. Questions or comments can be addressed to Webmaster_ca5_at_ca5.uscourts.gov. Crack Retroactivity Progress Report At present, the office has reviewed over 350 of the approximate 500 crack cases identified as potentially eligible for the crack sentencing reduction. There have been 160 reductions granted, 46 denied, and 79 determined to be ineligible because of mandatory minimums or because the cases involve drugs other than crack. Approximately 50 cases are awaiting disposition by the Court. According to the United States Sentencing Commission, the average reduction is about 15 months. Prior to the recent reductions, the ratio was 100 to 1. Following the reduction, the crack/powder ratio is roughly 80 to 1. Federal Public Defender s Office Welcomes New Employees Cynthia Cimino is our new Research and Writing Specialist. Cindy s entire legal career has been dedicated to the representation of indigent clients. She worked as a public defender in the Orleans Public Defender s Office as well as in the Miami Public Defender s Office. She is a graduate of Tulane Law School and later participated as an instructor in the Trial Advocacy Program. Her fresh outlook towards our office s motion practice is welcomed. Her intention is to assist in sentencing by filing memoranda challenging guideline calculations and seeking departures and variances on a regular basis. Cynthia Cimino Prior to accepting a position with our office, Assistant Federal Investigator Robert Oliver was an investigator with the Orleans District Attorney s office where he was assigned to the trial, homicide, public corruption and violent offender sections. He holds a Bachelor of General Studies from Northwestern State University where he specialized in Criminal Justice. He has specialized training in cyber crimes and computer forensics from Mississippi State University. Robert Oliver 8

9 Recommended Training Programs for Panel Attorneys LAW & TECHNOLOGY WORKSHOP PORTLAND, OREGON - JULY 24-26, 2008 The Law and Technology Workshop focuses on the use of modern technology to improve the persuasiveness of courtroom presentations. This workshop is an intensive program where participants will learn to use Trial Director and PowerPoint products to sharpen their courtroom skills. Attendees will enhance their direct-examination, crossexamination, and closing argument abilities with detailed application and use of these litigation tools. Today, many federal courtrooms are wired to accommodate the latest computer programs, and this technology has proven to be an effective and persuasive addition to lawyers arsenals. Participation in the Law and Technology Workshop is particularly valuable for federal criminal defense attorneys. In order to participate in this program, participants are required to provide their own laptop computers. General presentations and demonstrations are supplemented by concentrated small group workshops. In the smaller breakout groups, attendees receive hands-on guidance to apply the information presented in the plenary sessions using facts from a mock case file. Each participant will practice direct and cross-examination, and closing arguments, using Trial Director and PowerPoint software. Register online at BRYAN R. SCHECHMEISTER DEATH PENALTY COLLEGE SANTA CLARA UNIVERSITY, SANTA CLARA, CA - AUGUST 2-7, To register, contact Ellen Kreitzberg at (408) or This six-day trial skills program is the oldest annual death penalty trial practice college for defense counsel with pending capital trials, state or federal. Attendees use their own skills and "raw material" for this hands-on training. The sessions involve a combination of skills and concentrated trial preparation. The Office of Defender Services Training Branch provides financial assistance to a limited number of lawyers with federal capital cases to attend this college. NATIONAL FEDERAL HABEAS CORPUS SEMINAR - Special Sessions Devoted to Capital 2255 MILLENNIUM HOTEL, ST. LOUIS, MO - AUGUST 21-24, 24, 2008 This nationally recognized program focuses on representation in capital habeas cases, including issue identification, investigation, factual and legal development and representation of claims, the use of mitigation and mental health experts, and substantive and procedural habeas corpus jurisprudence. In addition, there will be special sessions devoted specifically to 28 U.S.C issues. Time will also be made available for case consultation with seminar faculty and the Federal Capital Habeas Project. For information about the overall program, contact Chastain Smith at For information about the capital 2255 sessions, contact MULTI-TRACK TRACK FEDERAL CRIMINAL DEFENSE SEMINAR LOS ANGELES, CA - SEPTEMBER 4-6, The Multi-Track Federal Criminal Defense Seminar is designed to offer in depth instruction in a variety of substantive criminal topic areas. Several of the tracks will be presented in four distinct hour-long time blocks. The sessions will be presented on Thursday and then repeated on Friday. This design will allow seminar participants the opportunity to attend two of the separate tracks. On Saturday, seminar participants will have the opportunity to select from four additional topics. In addition to the above-referenced tracks, the seminar will also include plenary sessions addressing topics of general interest and importance to criminal defense practitioners, along with the opportunity to attend small group breakouts covering a variety of substantive criminal defense issues. NACDL S MAKING THE CASE FOR LIFE XI BEAU RIVAGE RESORT AND CASINO, BILOXI, MS - SEPTEMBER 11-13, 13, 2008 The primary focus of this CLE program is the investigation, development, and presentation of penalty phase mitigation evidence in capital cases. Nationally recognized experts will address topics including mitigation standards, creative motions practice, demystifying mental health instruments, working with experts, gangs and drug crews, mental retardation, plea negotiations, representing foreign nationals, substance abuse and mental illness, and more. Faculty will also lead an in-depth discussion of the science of capital jury selection. This program has gotten great reviews from capital lawyers, mitigation specialists and investigators in past years. 9

10 LOUISIANA PUBLIC DEFENDERS ASSOCIATION DEATH PENALTY CLE SEMINAR PARAGON CASINO RESORT, MARKSVILLE, LA - JULY 18-19, 2008 Total CLE for this seminar is 12.0 hours, with an emphasis on practical and useful information for the practice of criminal law and death penalty litigation in Louisiana. Approaching the victims in a Death Penalty Case - The Victim Outreach Project - information on grant funded training and strategies to approach crime victims in the context of Death Penalty litigation. IQ and MR: Getting Current on tests and data gathering on the psychological and mental health issues - Richard Bourke - Critical leads in understanding test instruments and testing procedures. Richard is the Director of the Louisiana Capital Assistance Project, New Orleans. Jury Selection- Alan Golden - Methods and Issues in putting together a strategy for Capital Jury selection, including use of Power Point in Jury Selection, tip lists, results from Jury Studies on what they like, what they hate. Alan is the Public Defender in Caddo Parish, La., with many years experience. Professionalism - Judge Wilson Rambo - District Judge in Monroe, Wilson was a career Public Defender before taking the bench. What is Professionalism in the context of a Capital Case? Wilson is a former LaPDA President. Mitigation - Dani & Cunningham - Latest trends and strategies in bringing Mitigation to your Capital Defense Jury. Lethal Injection-Its not over - Gary Clements You ve heard the reports of the untimely death of challenges to Lethal Injection. Here s how to avoid that IAC claim when you fail to raise it anyway: its not over, so you need to know what pleadings to file to preserve the issue. Gary Clements is the Director of the Louisiana Capital Post Conviction Project. Hoppe and Daubert - If It Quacks Like a Duck, Daubert can lock it up Gary Clements How to protect your client from fake mental exams that are really an effort to discover defense evidence. What to do to de-frock the "independent examination" the State gets under Article 905. Gary Clements is the Director of the Louisiana Capital Post Conviction Project. Strategic Argument - What are the strategic issues in constructing your Penalty and Guilt Phase argument, and why. Ethics in Capital Defense - Do Ethical Rules Speak to Defending a Death Case? Judicial Training and the Bench Book: Death Penalty Trials from the Bench - Judge John Conery The Judicial College has started training District Judges for Death Penalty Trials. Judge Conery from St. Mary, Iberia, St. Martin helped organize writing a Bench Book informing on what the Court should do in managing the case. Interesting concepts. 10

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12 MESSAGE BOARD CJA attorneys should have two PACER accounts, one for exclusive use on CJA cases for which they are not charged, and a second account for use on retained cases. For full electronic public access fee schedule see Please be aware that when obtaining investigative, expert and other services in CJA appointed cases, district court approval is required for compensation of services which exceed $500 but which do not $1600. If in excess of $1600, the district court and the new Fifth Circuit Chief Judge Designee, Judge Jennifer Elrod, must approve. Approval is required prior to having the investigative, expert and other services rendered. Since January 1, 2008, Judge Jennifer Elrod has been authorizing excess CJA vouchers. Recently, Virginia Schlueter met with Judge Elrod to explain our review process. The explanation was well received. Please note that in any future extended or complex case involving interim payments, a budget will be required. A presentence investigation reports should be provided by the probation officer to the counsel for the defendant no less than 35 days prior to the date set for sentencing. Within 14 days thereafter, defense counsel shall communicate in writing to the probation officer and to the government any objections. No later than 7 days prior to the date of sentencing, the probation officer shall submit the PSI to the judge accompanied by an addendum. Local rule E requires that departure motions must be delivered to the judge s chambers 3 working days prior to the sentencing. The Office of the Federal Public Defender is reviewing applications for CJA panel membership. The applications should be filed with the Clerk of Court s office. If you know of someone who is qualified, please encourage them to complete an application which can be found on our website at If you are no longer able to accept panel appointments, please consider resigning your membership so that new attorneys may be added. FEDERAL PUBLIC DEFENDER S OFFICE Hale Boggs Federal Building 500 Poydras Street Suite 318 New Orleans, LA

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