The Constitution

Should Louisiana Gun Rights Extend To Convicted Felons?

 

In 2012, Louisiana voters approved a state constitutional amendment that makes gun ownership a fundamental right.  This places gun ownership on the same level as freedom of speech or freedom of religion.  This law also requires that any challenges should be held to strict scrutiny which is the most stringent standard of judicial review.  In other words, the law should favor the constitutional right or principle more than the government’s interest.

Since this amendment passed, many defense attorneys have challenged prosecutions for Felon in Possession of a Firearm La. R.S. 14:95.1 in state courts.  The issue is whether the amendment applies to convicted felons who are barred from having firearms.  District Judges in state courts seem to be divided on their interpretation of the law. A couple weeks ago, the Louisiana Supreme Court heard arguments addressing this question.

I am on the edge of my seat waiting for the justices to release their decision.  Last year, I had a case where I challenged the prosecution of my client for being a convicted felon with a firearm.  Unfortunately, the state court judge ruled against me.  I think that he just did not feel comfortable making that call.  One problem that I see with Louisiana’s statute restricting firearm possession with respect to felons is that the law is too broad.  I also think that the sentencing range is too harsh — 10 to 20 years. As written, the law does not even permit someone who has been convicted of a small felony, such as theft of $500.00, to possess a rifle to go hunting.

I know that I will revisit this topic when the justices release their decision.

 

If you or a loved one has been arrested for a violation of a Louisiana gun law, it is imperative that you hire an attorney who defends firearm offenses.  Contact attorney Elizabeth B Carpenter for a consultation.

 

 

Secret Injections and Messy Justice!

 

On Tuesday, April 29, 2014 two convicted murderers were set to be given lethal injections for their crimes in Oklahoma. Clayton D. Lockett and Charles F. Warner were to be Oklahoma’s latest executions. As the clock drew down on Mr. Lockett he was supposed to be given his last meal, marched down to the execution chamber, strapped down, injected with a cocktail of lethal drugs and peacefully pass away….or so the authorities thought!

 

Normally, and in the recent past in the U.S., the practice of injecting a person with a fatal dose of drugs was pretty straight-forward and often provided a quick end to a troubled life. The inmate would first fall asleep as the first drug entered his circulatory system. As the second drug is administered, his respiratory system would slow to a halt. The last drug would stop the heart, rendering the person dead. In essence, this was a humane approach to deadly justice. That’s the way it is supposed to work, at least.

 

As the world and European countries have begun to shun the practice of capital punishment, these drugs have become increasingly harder to obtain and have led the states to increasingly dramatic attempts to procure replacements. Now, many of these drugs originate from dubious and secretive origins.  To make matters worse, many courts have ruled that the prisons do not have to divulge the new supplier of these drugs, as was the case in Oklahoma.  Furthermore, the drugs that are now being used are still in the experimental phase.  Thus, the inmate is essentially a capital punishment guinea pig.  This climate of secrecy and mystery makes it impossible to know whether these executions will comport with the Constitution’s ban on cruel and unusual punishment.

 

This brings us to the common argument of who cares if he experienced pain or agony.  He still didn’t suffer as much as his victims.  This common sentiment may be a form of justice to some people but it certainly is not law and order.

 

I think that it is possible to support the death penalty and still be morally disgusted by the idea of torturing a man to death, especially under circumstances where those in charge knew or should have known their conduct would violate the Eighth Amendment’s “Cruel and unusual Punishment” clause.  If my beliefs are incorrect, then I ask those with such sentiments if, living in an uncivilized society is acceptable to them.  Within the past 48 hours, the best statement I’ve come across on this issue is

 

“An eye-for-an-eye does not raise anyone up; it just brings us down to the level of the condemned.”

 

The parents of Clayton D. Lockett’s victim released a statement to the press just prior to the execution, “We are thankful this day has finally arrived and justice will finally be served.”  I ask the question, “Has justice been served?”  In Oklahoma’s haste to execute Lockett, this convicted murderer has been elevated to a level that he does not deserve and never would have achieved had Oklahoma respected the basic requirements of due process.  Lockett’s name and photo have been all over the news.  The horrible acts that he perpetrated have quickly been forgotten.  He has become a victim of bureaucracy.  Ten years from now, students in criminal justice courses may read about him in text books. Did Oklahoma provide these parents with any amount of closure to help them heal from this tragedy?  It appears more as if the state betrayed these poor people.

 

This is not a pro or anti death penalty debate.  Quite frankly, I am tired of arguing that issue.  I think that the most important lesson for us to learn is that regardless of how we feel about capital punishment, due process and the Eight Amendment serve to protect us all: the victims, the convicted and society in general.  If we are going to have a Death Penalty- we must do it right.  Until this process becomes transparent, we are only hurting ourselves.

 

 

Dealing with Police Encounters — Know Your Rights!

New Orleans Criminal Defense Attorney

 

Elizabeth Bagert Carpenter, Esq.  — Drug Crimes Defense Attorney New Orleans

 

If you or a loved one has been charged with a drug crime, contact attorney Elizabeth B. Carpenter today.  Our firm is ready to start building your defense!

 

Ten Rules for Dealing with the Police — Know Your Rights!

 

The 4th amendment of the Bill of Rights provides for people and their property to have the right to be protected from unreasonable searches and seizures.  Law enforcement must have probable cause to obtain a search warrant.  Probable Cause is defined as clear facts and evidence to know that you are involved in criminal activity.  Never let the police search your vehicle or home without a warrant — even if you feel as if you have nothing to hide.

 

1.  Always be calm and polite.  Don’t talk back or raise your voice.

 

2.  You always have the right to remain silent.  During police encounters, the best thing to do is not speak.

 

3.  You have the right to refuse searches.  You should make it very clear, “Officer, I do not consent to searches.”  The officer is not required to tell you that you have the right to refuse a search.  Never consent to a search.  You may refuse a search of your car, house and personal items.  Also you are not required to empty your pockets.  Do not consent to a search even if you know that you are not in possession of something illegal.

 

4.  Don’t get tricked.  The police may lie to you.  Don’t let threats or promises trick you into waiving your rights.

 

5.  If you ever feel as if the officer is detaining you, ask if you are free to go.  Calmly state, “Officer, are you detaining me or am I free to go?”  This will establish that the encounter is not voluntary, which can help you later in court.  If the officer does not answer the question, then you are free to go.  If the officer interrogates you, say, “I am going to remain silent.  I would like to see a lawyer.”

 

6.  Don’t expose yourself to criminal activity in public.

 

7.  Don’t run from the police!  This is enough evidence to support “probable cause.”

 

8.  Never touch a cop!

 

9.  Pay close attention to detail and the order of events during a police encounter.  Record the event either visually or audibly if you can.  Immediately after, write down as much detail as possible – what were the officers statements, appearance, badge numbers, names…  Look around for possible witnesses.  You will need this information later to report and possible police misconduct.

 

10.  Do not let police into your home without a signed search warrant from a judge.  The only times warrants are not necessary are in cases of “hot-pursuit” and emergencies.  If an officer comes to your door clearly say, “I cannot let you in without a warrant.”

 

 

 

Permission to Search Luggage Does Not Extend to the Vehicle

New Orleans Drug Crime Attorney

 

By Elizabeth B Carpenter — Criminal Defense Attorney New Orleans 

 

Elizabeth B Carpenter Law is a premier law firm for Drug Crime defense.  We have defended almost every type of Drug Crime imaginable in South Louisiana.   If you are in need of a New Orleans criminal attorney, contact our office today.

Never give a police officer permission to search your vehicle or home!

 

United States v. Cotton (2013)

United States Fifth Circuit Court of Appeals 

 

In February 2011, Marvin Cotton was driving his rental car along Interstate 10 in east Texas when, without changing lanes or slowing his speed as required by Texas law, he passed Lieutenant Tony Viator’s emergency vehicle parked on the side of the road. Having already received a tip from a fellow officer that Cotton might be carrying drugs, Viator conducted a stop and a lengthy detention, running license checks with dispatch and questioning separately both Cotton and his passenger about their itinerary and their reasons for travel. Viator’s suspicion grew when inconsistencies in Cottons’s and his passenger’s stories emerged, so he sought Cotton’s consent to search the rental car for drugs. An audio recording from the camera on Viator’s vehicle captured Viator’s solicitation of Cotton’s permission to search everything in the car. Though Viator first requested permission, he twice more asked whether he could search the car. The parties disputed Cotton’s response to Viator’s initial request, but as to the two reiterated requests, Cotton indisputably responded by limiting his consent to a search of his luggage only. Nevertheless, Viator meticulously searched the entire vehicle, ultimately discovering a small, plastic-wrapped bundle containing crack cocaine concealed in the vehicle door’s inner cavity. Cotton then made incriminating statements while trying to work out a deal with the officers. He filed a motion in the District Court to suppress the drugs and the statements. The motion was denied, and Cotton pleaded guilty to one count of possession with intent to distribute more than 280 grams of cocaine and was sentenced to 121 months in prison. He appealed the District Court’s denial of his motion to suppress, having reserved the right to do so in his plea agreement.

The Fifth Circuit reversed the denial of Cotton’s motion to suppress, and vacated his conviction and sentence. The Court concluded that Cotton had limited his consent to the search of his luggage only. Consequently, Viator’s prolonged and more extensive search of Cotton’s entire vehicle violated his Fourth Amendment right, and the drugs uncovered during the unauthorized search of the vehicle, and the incriminating statements made shortly thereafter should have been suppressed as fruits of the unlawful search.

 

 

What is Boykinization?

New Orleans Criminal Defense Attorney

 

Elizabeth B. Carpenter, Esq. — Criminal Defense Attorney New Orleans


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.

 

Boykinization is a term sometimes used to refer to reading a defendant his rights. It derives from a case, Boykin v. Alabama, 395 U.S. 238 (1969), decided by the United States Supreme Court. This case is most often cited for the principle that guilty pleas are enforceable only if taken voluntarily and intelligently. Due process requires an affirmative showing that a defendant who pleads guilty to a criminal charge has been apprised of his constitutional rights and has knowingly and voluntarily waived those rights. Such waiver cannot be presumed and reversible error is presented when the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.

 

In Boykin, the defendant was charged with common-law robbery. He pleaded guilty to the five indictments against him, and the trial court entered his plea of guilty.The jury sentenced defendant to death. On automatic appeal, the state supreme court affirmed the judgment, holding that a death sentence for robbery was not cruel and unusual punishment. On further appeal, the United States Supreme Court court reversed defendant’s conviction because the record contained no showing that his guilty plea was voluntary. The court held that an affirmative showing of voluntariness on the record was necessary in order to conclude that defendant had waived his constitutional rights.

 

If you or a loved one is facing criminal charges, contact attorney Elizabeth B. Carpenter for a consultation.  Our firm prides itself on the results we achieve for clients.

 

 

United States Supreme Court Cases To Follow This Week — Criminal Defense Attorney New Orleans

By: Elizabeth B Carpenter

New Orleans Criminal Defense Attorney

 

Elizabeth B. Carpenter, Esq. — New Orleans Premiere Criminal Defense Attorney

 


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?

 

 

Supreme Court Declares Life Without Parole Unconstitutional — New Orleans Criminal Defense Attorney

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

The Times-Picayune

 

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.

juvenile-court.JPG
Life-without-parole sentences for juveniles are unconstitutional, according to a 5-4 opinion Monday morning from the U.S. Supreme Court.

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.

Louisiana Sex Law Violates Offenders’ Rights, Federal Judge Rules

Criminal Defense Attorney New Orleans

 

Elizabeth B Carpenter — 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.”

martin_feldman_crop.jpgU.S. District Court Judge Martin Feldman

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.

Louisiana Constitution

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.

 

Louisiana constitution

ARTICLE 1 Declaration of rights
ARTICLE 2 Distribution of powers
ARTICLE 3 Legislative branch
ARTICLE 4 Executive branch
ARTICLE 5 Judicial branch
ARTICLE 6 Local government
ARTICLE 7 Revenue & finance
ARTICLE 8 Education
ARTICLE 9 Natural resources
ARTICLE 10 Public officials & employees
ARTICLE 11 Elections
ARTICLE 12 General provisions
ARTICLE 13 Constitution revision
ARTICLE 14 Transitional provisions

 

Amendments to the Louisiana Constitution of 1974

Another New York Times Piece Regarding Prosecutorial Misconduct in the New Orleans DA Office: In Re Smith v. Cain

New Orleans Criminal Defense Attorney

Elizabeth B. Carpenter, Esq. —  Criminal Defense Lawyer Fighting for Justice.

 

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.

 Smith v. Cain argument recap

Supreme Court seems ready to overturn conviction in New Orleans murder case

Prosecutorial Misconduct New Orleans DA Office vs. Brady v. Maryland

U.S. Supreme Court approached New Orleans case with blinders: Jarvis DeBerry

 

The Big Sleazy

By 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.

Elizabeth B. Carpenter, Esq. —  Criminal Defense Lawyer Fighting for Justice.

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