By: Elizabeth B Carpenter
Serving Clients in Orleans Parish, St. Tammany Parish, St. John Parish, St. James Parish, St. Bernard Parish, St. Charles Parish, Assumption Parish, Tangipahoa Parish, Terrebonne Parish, Plaquemines Parish and Jefferson Parish.
The following cases are being argued before the U.S. Supreme Court this week:
BAILEY V. UNITED STATES
Can police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.
CHAIDEZ V. UNITED STATES
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.
FLORIDA V. JARDINES
Is a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?
FLORIDA V. HARRIS
Is an alert by a well-trained narcotics detection dog certified to detect illegal contraband insufficient to establish probable cause for the search of a vehicle?
Criminal Defense Attorney New Orleans
Elizabeth B. Carpenter, Esq. – Serving clients in Orleans, Jefferson, Terrebonne, Tangipahoa, St. Bernard, St. Charles, St. Tammany, St. John, Assumption and Plaquemines Parishes.
Life-without-parole sentences for juveniles declared unconstitutional by Supreme Court
Life-without-parole sentences for juveniles are unconstitutional, according to a 5-4 opinionMonday morning from the U.S. Supreme Court that involved a 14-year-old convicted of murder in Alabama. Evan Miller was convicted of arson and murder in Lawrence County, but his life without any possibility of parole sentence violates the Constitutional protection against cruel and unusual punishment, according to the justices.
The opinion was written by Justice Elana Kagan. The ruling, which also includes a case from Arkansas, is another in a line of decisions that don’t allow the criminal justice system to give up hope that the youngest criminals can be rehabilitated.
“By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regard- less of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment,” according to the opinion that was just released this morning.
The Campaign for the Fair Sentencing of Youth, which advocates for an end to lifetime mandatory sentences for youth, said that Louisiana has 332 youths serving life terms. That’s the third highest in the United States, behind only Michigan and Pennsylvania, according to the group.
“(The decision) will impact Louisiana significantly because we do have mandatory life sentences for juvenile offenses,” said Dana Kaplan, executive director of the Juvenile Justice Project of Louisiana. Kaplan, though, is reading the Supreme Court ruling, just out this morning, and says she’ll have a more thorough analysis later.
The four justices that dissented include Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas and Justice Antonin Scalia.
Criminal Defense Attorney New Orleans
Louisiana sex law violates offenders’ rights, federal judge rules
By: Associated Press
A Louisiana law violates the constitutional rights of people who were required to register as sex offenders after they were convicted of soliciting oral or anal sex for money, a federal judge ruled Thursday. U.S. District Judge Martin Feldman said state lawmakers had no “rational basis” for requiring people to register as sex offenders if they were convicted of a “crime against nature by solicitation.”
Feldman sided with nine anonymous plaintiffs who sued last year, saying they wouldn’t have had to register as sex offenders if instead they had been convicted of soliciting sex for money under the state prostitution law.
Civil rights attorneys who filed the suit against Louisiana Attorney General James “Buddy” Caldwell and other state officials claim the law is unconstitutional and discriminatory, unfairly condemning sex acts traditionally associated with homosexuality.
Feldman said the plaintiffs proved they have been deprived of their equal protection rights under the Fourteenth Amendment.
“The defendants fail to credibly serve up even one unique legitimating governmental interest that can rationally explain the registration requirement imposed on those convicted of Crime Against Nature by Solicitation,” Feldman wrote. “The Court is left with no other conclusion but that the relationship between the classification is so shallow as to render the distinction wholly arbitrary.”
Feldman gave the plaintiffs five days to submit a proposed judgment consistent with his decision. Plaintiffs’ attorney Alexis Agathocleous said he and his colleagues were still reviewing the ruling and weighing their options but would, at a minimum, ask for the names of the nine anonymous plaintiffs to be removed from the sex offender registry.
“We will work with the court to sort out the precise details of the judgment in this case,” said Agathocleous, an attorney for the Center for Constitutional Rights in New York.
Agathocleous said the ruling represents “powerful vindication” for the plaintiffs and a rebuke of a statute “borne of age-old animus.”
Feldman said the issue before him “is not about approval or disapproval of sexual beliefs or mores.”
“It is about the mandate of equality that is enshrined in the Constitution,” he wrote.
A spokeswoman for Caldwell’s office said she couldn’t immediately comment on the ruling.
The state Legislature amended the 200-year-old law last year so that anyone convicted of a “crime against nature by solicitation” no longer will be required to register as a sex offender. But the change didn’t apply to roughly 400 people who already had been convicted of the crime and were registered sex offenders.
The state argued the plaintiffs didn’t have a constitutionally protected right to privacy after being convicted of engaging in sex acts for money.
Gov. Bobby Jindal originally was named as a defendant in the suit, but the claims against him were dismissed last year.
New Orleans Criminal Defense Attorney
Elizabeth B. Carpenter, Esq. — representing clients in St. Charles, St. Tammany, Plaquemines, Jefferson, Orleans, St. John and St. Bernard Parishes.
Another New York Times Piece Regarding Prosecutorial Misconduct in the New Orleans DA Office: In Re Smith v. Cain
New Orleans Criminal Defense Attorney
Last week, I covered the current U.S. Supreme Court Case, Smith v. Cain. I think that it is very important for Louisiana residents to know and understand what has been going on for YEARS in the Orleans Parish DA office and how such misconduct is leading to wrongful convictions. Here are some links to refresh your memory.
The Big SleazyBy ANDREW ROSENTHAL
For the third time in 16 years, the Supreme Court is taking up the question of why prosecutors in New Orleans seem to have so much trouble with the law. Smith v. Cain, a case heard last week, outlines truly shocking misdeeds going back decades. And an article in The Times-Picayune makes clear that problems continue.
Take for example this account of District Attorney Leon Cannizzaro’s ignorance regarding an essential rule of law:
Last week, Cannizzaro insisted his office acted properly when it waited until the middle of a trial to tell a defense attorney about its deal with the victim and lone eyewitness in a December 2010 shooting in eastern New Orleans. Cannizzaro told The Times-Picayune his office didn’t initially reveal the deal, which was inked in August, because Smith’s lawyer never asked. “The defense attorney has to request it, and if he doesn’t, we’re not obligated to give it to him,” Cannizzaro said last week.
Hey, I saw “My Cousin Vinny.” That’s just wrong.
Beginning with the 1963 case Brady v. Maryland, the Supreme Court has made clear that a prosecutor has a duty to disclose evidence favorable to the defendant—even if the defendant doesn’t ask for it—if the evidence is likely to change the result of the legal proceeding.
Lest you be shocked by this tiny little gap in Mr. Cannizzaro’s knowledge, consider his predecessor, Harry Connick, who boasted that he “stopped reading law books” and “looking at opinions” after he was elected district attorney in 1974. That apparently includes Supreme Court rulings. After the Court’s 1995 decision in Kyles v. Whitley, featuring what Justice John Paul Stevens called “many instances” of the district attorney’s office’s “failure to disclose exculpatory evidence,” Mr. Connick testified in court that he made no changes in his office’s approach to meeting Brady requirements.
If a prosecutor so blatantly fails to do his job, surely there is swift and powerful punishment. Actually, no. Lincoln Caplan, one of the board’s legal writers, explains below:
Mr. Connick’s testimony came in Connick v. Thompson, which the court decided last March. In a bitterly divided 5-4 vote, the court overturned a $14 million jury verdict against the district attorney’s office, reached because the office withheld exculpatory evidence from John Thompson and, as a result, sent him to prison for 18 years, 14 on death row. That disposed of one the handful of ways it was possible to deter prosecutorial misconduct.
A group of Yale Law School students recently published a report on “The Myth of Prosecutorial Accountability After Connick v. Thompson,” which is unsettling but well worth reading.
In the Connick case, Justice Clarence Thomas wrote that “[a]n attorney who violates his or her ethical obligations is subject to professional discipline, including sanctions, suspension, and disbarment.”
But that’s not really so. As the report relates, “prosecutors have rarely been subjected to disciplinary action by state bar authorities,” even though “state bar disciplinary procedures stand as one of the few – and perhaps the only – means of holding prosecutors accountable for gross misconduct.”
For instance, although the lead prosecutor in Smith v. Cain was sanctioned for misconduct by the Louisiana Supreme Court in 2005 (in another case), the court suspended his sentence after observing that this was “a case of first impression in the State of Louisiana” and that the court had never before “been confronted with the issue of disciplining a prosecutor for failing to disclose” Brady material.
Well, that’s a novel idea. If you’re the first to be sanctioned for an offense, you don’t get punished for it.
Prosecutorial Misconduct New Orleans DA Office vs. Brady v. Maryland
NEW ORLEANS CRIMINAL DEFENSE ATTORNEY
By: Law Office of Elizabeth B. Carpenter – Contact
John Thompson, an innocent man, served 18 years in Louisiana prisons including 14 years on death row due to prosecutorial misconduct before he was exonerated in 2003.
He sued the Orleans Parish Attorney’s Office in civil court and won a 14 million dollar settlement, but the decision was eventually overturned by the U.S. Supreme Court stating a single case of prosecutorial misconduct at the Orleans Parish district attorney’s office was not sufficient proof that the office had failed to properly train its prosecutors.
In my opinion, this ruling in nonsensical because it conflicts with Brady v. Maryland, a 1963 landmark Supreme Court case in which our nations highest court ruled that prosecutors have an affirmative duty to disclose all exculpatory evidence to the accused.
Subsequent case law expanded Brady‘s obligations to law enforcement officers and defined exculpatory evidence as any evidence that could be favorable to the accused. This may include:
- Evidence relevant to guilt or innocence.
- Evidence relevant to the appropriate punishment.
- Evidence relevant to a witness’ credibility, including evidence the defense might use at trial to impeach a witness. Giglio v. U.S., (S. Ct. 1972).
Yesterday, another case ( Smith vs. Cain) was argued in front of the Supreme Court with the same issue at bar. The defendant’s name is Juan Smith, New Orleans murder convict who says former DA Harry Connick’s Sr. administration kept secret evidence that would have helped him at trial. The lone eyewitness to a quintuple murder on North Roman Street picked Smith out of a photo lineup and reportedly said, “I’ll never forget Juan’s face, never.” Smith’s attorneys weren’t told what that witness had reportedly said three months before then, that he was “too scared to look at anybody.” Smith thinks a jury may have acquitted him if prosecutors had disclosed the eyewitness’ change of story.
The U.S. Supreme Court must decide “Whether the state courts in this case erred in concluding that any violation of the defendant’s constitutional rights at his criminal trial was harmless.”
I am surprised the high Court granted Certiorari because this case essentially undercuts the majority’s argument that it was ruling against Thompson in part because he couldn’t demonstrate a pattern of abuse. Furthermore, Thompson’s case was heard almost less than a year ago.
If you would like to read a recap of yesterday’s argument in Smith v. Cain click here — it is an interesting read
While we wait for our honorable highest Court to decide this case, I would like to thank my colleagues at The Capital Post Conviction Project of Louisiana. Their hard work is inspiring. I also pray for a day when the Orleans DA Office develops a reputation for integrity.
Thompson spoke with Innocence Project staff and students in June 2011 about his case and the issue of prosecutorial misconduct. Listen to his words in the above video!
Law Office of Elizabeth B Carpenter, Esq. — New Orleans Criminal Defense
Frequently Asked Questions About Police Interrogations — New Orleans Criminal Defense Attorney
If you or a loved one are facing criminal charges, contact Elizabeth B. Carpenter — New Orleans Criminal Attorney
The police can stop a person when they have good faith belief that the person was involved in a crime – this is often referred to as a “Terry Stop.” However, under the Fifth Amendment right against self-incrimination, a person does not have to answer any questions. In fact, a person should not answer any questions during a “Terry Stop.” The law only requires a person to give his name, date of birth, address and other information to establish identity if requested. Therefore, if questioned about a crime when walking on a street, do not utter any words accept your name. Respectfully, inform the officer that you are exercising your Fifth Amendment Constitutional Rights.
In what circumstances do the police need a warrant to make an arrest?
If the police have “probable cause,” a reasonable suspicion that a person has been committed a crime, it is unnecessary for them to obtain a warrant before arresting someone. However, police must obtain a warrant when arresting a person in his home if it is for a non-serious offense and there is no belief that the person will destroy evidence. The arrest warrant must provide evidence that a crime has been committed, that the person names on the warrant committed the crime and the warrant must comply with all rules of court.
Do police have to give Miranda warnings when making an arrest?
This is a concept that is often misunderstood by clients. No, the police do not need to give the Miranda warnings when making an arrest. Miranda warnings are required only when the police interrogate a person after an arrest. Miranda warnings are also not required when the police interrogate someone prior to an arrest however, everything that you say to the police at any point in time can be used against you. Police may also have you sign a waiver of rights form rather than verbalize your Miranda Rights. Pay attention to what you sign!
Will my case be dismissed since the police questioned and arrested me without giving a Miranda warning?
No, the prosecutor can still bring charges against you even if the police failed to give Miranda warnings before conducting a police interrogation. The failure to Mirandize a suspect after arrest and prior to interrogation prevents the prosecutors from being able to use any evidence obtained via the interrogation against the suspect at trial. But the prosecutor can use evidence obtained via another means to secure a conviction.
If I agree to police questioning, can I later decide not to answer questions?
Yes, Miranda warnings give a person the right to stop a police interrogation at any time even if he has already waived his right to remain silent and answered some questions. A person can exercise this right by refusing to answer any more questions or requesting an attorney. Once a person avers Miranda rights, the police must discontinue the interrogation.
What tactics can the police use when questioning a suspect?
Law enforcement is forbidden from using physical or psychological coercion when conducting police interrogations. However (I wish that everyone understood this) the police can lie, trick and employ other types of non-coercive methods to obtain a confession from a suspect. Police are trained in interrogation techniques. They are allowed to make false promises and use scare tactics. They are allowed to tell you that they have the power to decide how severely you will be prosecuted. This is absolutely not true!
Do the police have the right to take a bodily sample without permission?
Generally, No. Law enforcement must obtain a search warrant. However, the Fifth Amendment right against self-incrimination applies to communication and does not prohibit the police from collecting physical bodily evidence, i.e. blood samples, hair samples. I would refuse a bodily sample based on “no search warrant.”
The best advice I can give every client is Do Not Speak To The Police!
If you’ve been arrested, contacted by law enforcement, or if you are being accused of a crime but no charges have been filed yet, you need to speak with a criminal defense attorney as soon as possible! This is the single most important time for a criminal attorney to get involved. Many legal rights have time-specific deadlines and legal matters will become harder to manage successfully the longer they are left unattended.