Opposition Brief — Allen Robertson, Jr., Petitioner v. Louisiana

IN THE SUPREME COURT

OF THE STAT OF LOUISIANA

NO. 2016 — KP - 1742

STATE OF LOUISIANA

ex rel.

ALLEN ROBERTSON, Jr.

Petitioner

versus

DARREL VANNOY, Warden

Respondent

SUPPLEMENT TO APPLICATION FOR WRIT OF REVIEW

Supplemental Application for Writ of Review

From the Nineteenth Judicial District Court

Parish of East Baton Rouge, State of Louisiana

Criminal Docket No. 01-91-611

Honorable Michael R. Erwin, Presiding Judge

THIS IS A CAPITAL CASE

Submitted by:

Gary P. Clements (La Bar No. 21978)

Capital Post-Conviction Project of Louisiana

1340 Poydras Street, Suite 1700

New Orleans, LA 70112

(504) 212-2110 (Phone)

(504) 212-2130 (Fax)

Matilde Carbia (La Bar No. 32834)

Law Office of Matilde J. Carbia, LLC

P.O. Box 3192

Stuart, FL 34995

(504) 434-0863 (Phone)

ON BEHALF C'¥ APPLICANT, ALLEN ROBERTSON, JR.

APPENDIX - EXHIBIT A

Table of Contents

I. THE SUPREME COURT OF THE UNITED STATES’ RECENT DECISION IN MOORE V. TEXAS

INFORMS APPLICANT?S ATKINS CLAIM ussccscsccssssrscsressssescseeses . . 1

II. MR. ROBERTSON’S JUROR MISCONDUCT CLAIM SHOULD BE RECONSIDERED IN LIGHT

OF THE SUPREME COURT OF THE UNITED STATES’ RECENT DECISION IN PENA-

RODRIGUEZ V. COLORADO............s000e0008 . )

A. Racial animus influenced a juror’s decision to convict Applicant and sentence him to death, resulting

in the violation of Applicant’s right to a fair and impartial jury. 6

Ill. IF REMANDED, APPLICANT’S CLAIM(S) SHOULD BE RANDOMLY REALLOTTED TO A NEW

DISTRICT COURT JUDGE...... sosssccecessoecenernes sseccnecscvesscesnceesensosensnsesconcnsonees seveenee B

TV. CONCLUSION......sscsssssscosssrcossessesesersessscesonsenseassceecossesonsecssrossecess seecenesenees 10

VERIFICATION OF COUNSEL........rcsssssosssscsssscssscorsonsonsonsossessscesssseecnecersnseenscssssoscesensessncesoasencorensessaseseeserseeoes 11

APPENDIX

EXHIBIT A: Supreme Court of the United States, Moore v. Texas,581U.S.___ (2017)

EXHIBIT B: Supreme Court of the Unites States, Pena-Rodriguez v. Colorado, 580 U.S.__ (2017)

EXHIBIT C: Dr. Donald G. Hoppe, Psy.D. — Consent Order on Disciplinary Action

EXHIBIT D: Declaration of Johnny Robin

EXHIBIT E: Affidavit of Alison McCrary

EXHIBIT F: The Advocate article, Baton Rouge judge Mike Erwin banned from local eatery after allegation

of racial slur

EXHIBIT G: The Rouge Collection article, White Baton Rouge Judge Calls Black Woman the N-word

at Local Restaurant

EXHIBIT H: The Rouge Collection article, Local NAACP Calls For Investigation Into Judge Mike

Erwin Use of the N-Word

EXHIBIT I: WBRZ article, Report — Judge banned from eatery over racial exchange with woman at

bar

EXHIBIT J: BET article, Louisiana Judge Says, ‘I’d Never Utter That Language, ‘Denies Hurling N-

Word at Kaneitra Johnson

EXHIBIT K: NY Post article, Restaurant bans judge for allegedly using racial slur

EXHIBIT L: Fox 10 TV article, Restaurant that banned Baton Rouge judge releases statement about

racial slur incident

EXHIBIT M: News One article, Louisiana Judge Barred From Restaurant After Hurling N-Word Slur

EXHIBIT N: NY Daily News article, La. Judge banned from eatery after woman claims he used N-

word

EXHIBIT O: Daily Mail article, Louisiana judge allegedly calls black customer the N-word

EXHIBIT P: Motion for Recusal

EXHIBIT Q: January 22, 2010 Hearing Transcript —

i

MAY IT PLEASE THE COURT:

The procedural history of this case has been thoroughly outlined in Mr. Robertson’s original Writ

Application. For purposes of this supplemental pleading, Mr. Robertson confines his discussion to two recent

decisions by the Supreme Court of the United States, Moore v. Texas, 581 U.S. (2017) and Pena-Rodriguez v.

Colorado, 580 U.S. ___ (2017) attached as Exhibits A and B—and the effect these decisions have on his Writ

Application.

I. THE SUPREME COURT OF THE UNITED STATES’ RECENT DECISION IN MOORE

V. TEXAS INFORMS APPLICANT’S ATKINS CLAIM

On March 28, 2017, the United States Supreme Court decided Moore v. Texas, 581 U.S. __ (2017), and

vacated the lower court’s ruling affirming defendant Bobby Moore’s death sentence, as “not aligned with the

medical community’s information.” Exhibit A at 2. While the Moore opinion centers, in part, on Texas’ use of the

Briseno factors'—a practice peculiar to that state—the United States Supreme Court likewise affirmed its decision

in Hall that “adjudications of intellectual disability should be ‘informed by the views of medical experts’.” Exhibit

A at 2. In the instant case, the state district court engaged in the very behavior proscribed by the Moore Court in

denying Applicant’s Atkins claim: the state district court’s ruling cites no medical experts and instead focuses on

Applicant’s perceived verbal skills as evidence that he is not intellectually disabled. Exhibit | at 3.2 Further, during

Applicant’s evidentiary hearing, the state district court indicated confusion regarding the standard for competency

versus the definition of intellectual disability. Exhibit 3 at 59-60. Additionally, the State and Dr. Curtis Vincent

(court-appointed)}—focused on Petitioner’s relative strengths rather than his weaknesses in evaluating adaptive

deficits, the second prong of intellectual disability.’ Finally, during Applicant’s evidentiary hearing both the state

' The United States Supreme Court elaborated that the Briseno factors are “an invention of the CCA untied to any acknowledged

source.” Exhibit A at 2. At least one of the seven Briseno factors, while not called by that name, was emphasized by Dr.

Donald Hoppe and Dr. Curtis Vincent in their evaluation that Applicant was not intellectual disabled. That factor is:

“Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require

forethought, planning, and complex execution of purpose?” See Ex parte Briseno, 135 S. W. 3d 1, 8-9 (Tex. Crim. App. 2004).

See Exhibit 4 at 46 & 47; Exhibit 4 at 82 (“But many times . . . the evidence from the crime, the descriptions from the crime

are the most objective and most complete description of the defendant’s behavior we have in the entire record.”); Exhibit 4 at

94-96; Exhibit 6 at 147-148.

? Pursuant to Louisiana Supreme Court Rule X Section 3(9), the exhibits attached to the previous writ application are not

duplicated and attached here. Such exhibits are referenced according to their numerical order in the original writ. New exhibits

attached to this application are referenced alphabetically.

> The State routinely objected to questions regarding whether an evaluation of intellectual disability is focused on deficits rather

than strengths. See, e.g., Exhibit 4 at 14 (“Q. An intellectual disability evaluation for the court is focused on deficits? Ms.

Burns: Judge, I’m going to object. That is not the case law. The Court: Sustained.”); id. (Q: And intellectual disability is by

definition a condition characterized by deficits? Ms. Burns: Objection, Your Honor....”); id. at 16 (“Q: So again, Dr. Vincent,

intellectual disability is a condition characterized by deficits? Ms. Burns: Again, I’m going to make the same objection, Your

Honor.”).

1

district court and the State and its expert’ cited Applicant’s risk factors for intellectual disability as cutting against

a diagnosis of intellectual disability.

As an initial matter, the state district court’s denial cited no experts and relied, at least in part, on its own

lay observations in finding that Mr. Robertson is not intellectually disabled.’ See Exhibit 1. Like the Texas CCA’s

decision in Briseno—heavily criticized by the U.S. Supreme Court in Moore—Judge Erwin’s oral denial of

Applicant’s Atkins claim “advanced lay perceptions of intellectual disability.” Exhibit A at 15. In both Judge

Erwin’s 2008 and 2016 oral denials, he notes that Applicant was “very active in his two trials with his lawyers” and

further bases his 2016 denial on ‘the video tapes that I watched of his [Applicant’s] confession and the video tape

that was not admitted into evidence during the trial.” Exhibit 1 at 3. Judge Erwin’s 2008 denial further noted that

having “heard his answers under questioning by both his attorney and the State . . . it doesn’t appear that he

[Applicant] falls into the mentally retarded category.” See Exhibit 10 at 3. However, as the State’s own expert

conceded, persons with intellectual disability can appear normal to the lay observer and can develop relatively

normal syntax and grammar. Exhibit 4 at 135 (Dr. Hoppe testifying that it is possible for persons with intellectual

disability to have normal grammar, vocabulary, and syntax).

The state district court likewise expressed confusion regarding intellectual disability and competency and

conflated the two standards. At the close of the testimony of the State’s expert Dr. Donald Hoppe, the court handed

Dr. Hoppe an affidavit submitted into the record by undersigned counsel, in which Applicant waived his presence

at the evidentiary hearing. After asking Dr. Hoppe to read the affidavit aloud, the state district court asked: “What

does that mean to you?” Exhibit 3 at27. Dr. Hoppe answered “It means that he was judged competent to understand

his rights and to make a waiver of his rights through that—he made an informative [sic] decision based upon what

is written in the law, in a very sophisticated language I would add.” Exhibit 3 at 27. At that point, the State marked

and submitted the affidavit as State’s Exhibit 22. Exhibit 3 at 29.

On rebuttal, undersigned counsel called expert Dr. Mark Cunningham back to the stand, who testified

regarding the difference between intellectual disability and legal competence:

Q. Is there a difference between legal competence and intellectual disability?

A. Yes, sir, there is.

Q. Can you describe briefly what that is?

A. There are many — or with some regularity, persons with no [sic] retardation or intellectual

disability come before the courts. They have committed crimes and [in] many, if not most

instances, they are deemed to be competent to stand trial even though they’re a person with mental

retardation. ...

* In 2010, the State’s expert Dr. Donald Hoppe entered into a Consent Order with the Louisiana State Board of Examiners of

Psychologists related to an alleged violation of R.S. 37:2359(B)(2) and Ethical Standard 3.04 of the APA Ethical Principles

and Code of Conduct (2002). Exhibit C.

> The district court, in denying Mr. Robertson Atkins relief, relied on Mr. Robertson’s “school records where he was never

found mentally retarded/intellectually disabled, his I.Q. scores, and his ability to adapt to life...” and that Mr. Robertson “was

very active in his two trials with his lawyer,’> and additionally cited “the video tapes that I watched of his confession and the

video tape that was not admitted into evidence during the trial.” Exhibit 1.

2

Exhibit 3 at 59. The state district court interjected, stating:

The Court: Let me interrupt you. From someone who has been doing this for twenty-six years,

it’s never happened in my court, so I don’t believe that either.

Mr. Clements: Excuse me your honor, I’m not—I didn’t hear what you said.

The Court: I said I’ve been doing this for twenty-six years. That situation has—or scenario has

never come up in my court. I don’t think it applies.

Exhibit 3 at 59-60. From his comments, it appears that the state district court incorrectly believes that incompetence

to stand trial is a prerequisite for someone to be found mentally retarded or intellectually disabled—a proposition

for which there is no support.

Further, the state district court as well as the State and Dr. Vincent all improperly emphasized Applicant’s

relative strengths in assessing Mr. Robertson’s adaptive functioning. As the Moore Court asserted:

[T]he medical community focuses the adaptive-functioning inquiry on adaptive deficits. E.g.,

AAIDD-11, at 47 (“significant limitations in conceptual, social, or practical adaptive skills [are]

not outweighed by the potential strengths in some adaptive skills”); DSM-5, at 33, 38 (inquiry

should focus on “[dJeficits in adaptive functioning”; deficits in only one of the three adaptive-skills

domains suffice to show adaptive deficits); see Brumfield, 576 U.S. at __ (slip op., at 15)

(“[I]ntellectually disabled persons may have ‘strengths in social or physical capabilities, strengths

in some adaptive skill areas, or strengths in one aspect of an adaptive skill in which they otherwise

show an overall limitation.’” (quoting AAMR, Mental Retardation: Definition, Classification, and

Systems of Supports 8 (10th ed. 2002)).

Exhibit A at 12-13 (emphasis in original). Nonetheless, the state district court’s denial noted Mr. Robertson’s

“ability to adapt to life” and his verbal skills as demonstrated by the law enforcement videotapes of Applicant

introduced by the State. Exhibit 1. On cross-examination, court-appointed expert Dr. Curtis Vincent, who found

Applicant was not intellectually disabled, testified that, in evaluating adaptive functioning, strengths must be

assessed as well as weaknesses:

Q: And mental retardation or intellectual disability is defined by deficits?

A: It’s defined by both. Most commonly it’s referred to what the — one measures the abilities of

. the individuals, and it’s the typical abilities when you’re looking at adaptive functioning, but both

have to be assessed, both deficits and strengths.

See Exhibit 5 at 42. Dr. Vincent further testified, when asked whether intellectual disability was a condition

characterized by deficits, that:

A: I don’t see it that way, no. If we’re measuring deficits, deficits and all skills exist on a

continuum. So we—the cutoff being approximately seventy for I.D. they’re — that individual is not

only going to have deficits that’s—that was discussed considerably in the AAIDD manuals. The

individual has strengths and has deficits as well. So it’s not possible to simply look at deficits.

Exhibit 4 at 16. Dr. Vincent, while correct that an individual with intellectual disability will have both strengths

and weaknesses, did not acknowledge controlling case law or Louisiana’s own statute defining intellectual disability

through the presence of deficits, not strengths. See La. C.Cr.P. art. 905.5.1 (2016).

Finally, both the state district court and the State framed risk factors as weighing against a diagnosis of

intellectual disability rather than being supportive of such a diagnosis, as the medical community recognizes. In

Moore, the U.S. Supreme Court criticized the state court’s analysis, noting:

The [Texas] CCA furthermore concluded that Moore’s record of academic failure, along with

the childhood abuse and suffering he endured, detracted from a determination that his

intellectual and adaptive deficits were related. Those traumatic experiences, however, count

in the medical community as “risk factors” for intellectual disability. Clinicians rely on such

factors as cause to explore the prospect of intellectual disability further, not to counter the

case for a disability determination.

Exhibit A at 14 (internal citations omitted) (emphasis in original). The state district court’s questioning of

Applicant’s expert Dr. Cunningham indicates that the court had determined that Applicant’s alcohol abuse and

failures in school—behavioral and educational risk factors for intellectual disability—detracted from rather than

supported such a diagnosis: |

The Court: Doctor, you eluded [sic] to Allen’s early drinking.

The Witness: Yes, sir.

The Court: And possible—at least I got the impression, a possible link to his behavior in school.

The Witness: Yes, sir.

The Court: Now there’s a lot of people who drink and do bad in school. Would you agree with

that?

The Witness: Yes, sir.

The Court: Because, you see, the road goes on forever and the party never ends, except when I got

a letter from L.S.U. that told me I was about to flunk out, and I’m certainly not intellectually

disabled or mentally retarded.° I just didn’t apply myself. Could that account for Allen Robertson’s

behavior in school?

Exhibit 2 at 63-64. However, unacknowledged by the court and the State is the expert testimony of Dr. Hayes and

Dr. Cunningham that Applicant exhibited intellectual and adaptive impairments well before he began using alcohol

and drugs. Court-appointed expert Dr. Jill Hayes testified regarding Applicant’s academic performance and

substance use that:

What I did was I looked to see if there was a pattern of deficits that dated back to, hopefully, when

he wasn’t necessarily using drugs, when he was younger. And his academic testing indicated that

he did have this pattern of deficits in the functional academic area dating back to when he was a

little kid.

Exhibit 7 at 68. Applicant’s expert, Dr. Mark Cunningham, similarly testified:

My point was that the onset of — not just his academic difficulties, but his... social impairments,

had an onset sustained presence long before he began a pattern of alcohol and drug abuse, and that

those deficits are also evident after he’s incarcerated and is no longer abusing alcohol and drugs.

Exhibit 3 at 51; see also Exhibit 3 at 56 (“We've already identified that drug and alcohol use is not a satisfactory

explanation for that [Applicant’s academic work performance and adaptive deficits in social skills], because these

conditions are present before the drug and alcohol abuse starts.”).

The State likewise elicited testimony from its expert Dr. Hoppe that the slow learner designation and

substance use were more fitting explanations than an intellectual disability diagnosis:

Q. Okay, Dr. Hoppe, is it fair to say that in this case that there’s more an issue of drugs and slow

learning and not intellectual disability?

A. The data is more consistently pointing in that direction, yes. The only documented cognitive

labeling throughout the record is slow learner. There are specific statements that he is not mentally

6 Throughout the evidentiary hearing, the state district court consistently compared himself, and sometimes his wife, to Mr.

Robertson, implying that because there were similarities between Applicant and persons who are not intellectually disabled,

that Mr. Robertson was not intellectually disabled either. See, e.g., Exhibit 4 at 137 (“My use ofa typewriter is poor.”); Exhibit

3 at 47 (“So far he sounds a lot like me as a kid.” in response to Applicant’s expert testifying that Applicant would steal one or

two beers out of the ice box as an eleven or twelve-year-old.); Exhibit 7 at 102 (“I actually have ona semi-light blue t-shirt that

used to be white. I don’t think my wife is mentally retarded.”).

4

retarded. There are no statements to suggest that he is. And certainly the drug use shows up over

and over again. The reliable data seems to point in that direction.

Q. And of course, slow learner under our statute is one of the exemptions, like autism. That does

not mean—

A. Correct.

Q . Intellectual disability; is that correct?

A. Correct.

Exhibit 4 at 110-111. Dr. Hoppe likewise mischaracterized Louisiana’s intellectual disability statute in his

supplemental report, acknowledging that Mr. Robertson “experienced significant emotional stress at home and in

school”, was “[elnvironmentally, culturally, and economically” “severely disadvantaged”, had “limited”

educational opportunities, and “very likely had a learning disability” but then asserts that such risk factors were

“specifically exclude[d] . . . as diagnostic of mental retardation” by the Louisiana Criminal Code. Exhibit 15B at 9

(emphasis in original).

Rather than precluding a diagnosis of intellectual disability, La. C.Cr.P. art. 905.5.1 states that “[a]

diagnosis of one or more of the following conditions”’—including those listed by Dr. Hoppe in his supplemental

report—“does not necessarily constitute mental retardation.” See La. C.Cr.P. art. 905.5.1(H) (2) (2016). And in

fact, Mr. Robertson does exhibit numerous risk factors for intellectual disability. See, e.g., Exhibit 5 at 37-40 (Dr.

Vincent testifying about risk factors for intellectual disability and further testifying that Mr. Robertson “certainly

[has] a number of risk factors”), Exhibit 4 at 121 (Dr. Hoppe testifying that there are multiple risk factors for

intellectual disability); Exhibit 4 at 123-128 & Exhibit 2 at 51 (Dr. Hoppe acknowledging that at least fourteen risk

factors for intellectual disability identified by the AAIDD apply to Mr. Robertson). As the AAIDD notes, “at least

one or more of the risk factors [described in the manual] will be found in every case” of intellectual disability. See

The AAIDD Ad Hoc Committee on Terminology and Classification, Intellectual Disability: Definition,

Classification and Systems of Support (11th ed. 2010) (hereinafter “AAIDD 11" ed.”) at 60.

In light of the U.S. Supreme Court’s decision in Moore, Applicant’s Atkins claim warrants relief and his

death sentence must be vacated. In the alternative, Applicant requests that his Atkins claim be remanded to the state

district court for further proceedings not inconsistent with Moore v. Texas, 581 U.S.___ (2017).

II. MR. ROBERTSON’S JUROR MISCONDUCT CLAIM SHOULD BE RECONSIDERED IN

LIGHT OF THE SUPREME COURT OF THE UNITED STATES’ RECENT DECISION

IN PENA-RODRIGUEZ V. COLORADO

In Pena-Rodriguez v. Colorado, 580 U.S.___ (2017), the United States Supreme Court held that “where a

juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal

| defendant, the Sixth Amendment requires that the no-impeachment rule’ give way in order to permit the trial court

” The no-impeachment rule, also called the “jury shield law”, codified in Louisiana law as C.E. 606(B), states:

B. Inquiry into validity of verdict or indictment. -- Upon an inquiry into the validity of a verdict or

indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's

deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him

to assent to or dissent from the verdict or indictment or concerning his mental processes in connection

therewith, except that a juror may testify on the question whether any outside influence was improperly

brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was

5

to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Exhibit B at

17. “A constitutional rule that racial bias in the justice system must be addressed—including, in some instances,

after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a

confidence that is a central premise of the Sixth Amendment trial right.” Exhibit B at 17. In the instant case, racial

animus infected Mr. Robertson’s conviction and death sentence in violation of his Sixth Amendment rights.

Applicant respectfully requests that this Court reopen and remand his jury misconduct claim for consideration in

light of Pena-Rodriguez.®

A. Racial animus influenced a juror’s decision to convict Applicant and sentence him to

death, resulting in the violation of Applicant’s right to a fair and impartial jury.

Racial animus in jury deliberations causes an “impermissibly large risk of an inaccurate conviction.”

Whorton v. Bockting, 549 U.S. 406, 418 (2007) (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004)). The

United States Supreme Court repeatedly has held that “discrimination on the basis of race, odious in all aspects, is

especially pernicious in the administration of justice.” Exhibit B at 15 (quoting Rose v. Mitchell, 443 U.S. 545, 555

(1979)); see also Ham v. South Carolina, 409 U.S. 524 (1973); Castaneda v. Partida, 430 U.S. 482 (1977); Batson

v. Kentucky, 476 U.S. 79 (1986); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991); Georgia v. McCollum,

205 U.S. 42 (1992). Considered a defendant’s “fundamental ‘protection of life and liberty against race or color

prejudice’”—see McClesky v. Kemp, 481 U.S. 279, 310 (1987}—* racial prejudice in the jury system damages ‘both

the fact and the perception’ of the jury’s role as ‘a vital check against the wrongful exercise of power by the State.’”

Exhibit B at 15 (internal citations omitted). Racial bias in the jury system—‘a familiar and recurring evil”—“left

unaddressed[] risk[s] systemic injury to the administration of justice.” Jd. at 15-16.

improperly brought to the jury's attention. Nor may his affidavit or evidence of any statement by him

concerning a matter about which he would be precluded from testifying be received for these purposes.

La. C.E. 606(B) (2017).

® The United States Supreme Court has held that a new constitutional rule will apply retroactively to cases on collateral review

in two circumstances—where when a new constitutional rule is (1) a substantive rule or (2) a “watershed” rule of criminal

procedure. See Teague v. Lane, 489 U.S. 288, 311 (1989); State ex rel. Taylor v. Whitley, 606 So.2d 1292, 1296 (1992) (this

Court adopting Teague standard for all cases on collateral review in state court proceedings); see also Saffle v. Parks, 494 U.S.

484, 494-495 (1990). The Pena-Rodriguez decision announced a “watershed” rule, one which implicates the fundamental

fairness and accuracy of a criminal proceeding and must meet two requirements: 1) it must be necessary to prevent an

impermissibly large risk of an inaccurate conviction and 2) the rule must alter our understanding of the bedrock procedural

elements essential to the fairness of a proceeding. See Saffle, 494 U.S. at 495; see also Whorton v. Bockting, 549 U.S. 406, 418

(2007) (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004)). Pena-Rodriguez satisfies both requirements.

First, unaddressed racial bias in the jury system, “would risk systemic injury to the administration of justice.” Jd. at 15-16.

Second, Pena-Rodriguez changes the bedrock procedural elements necessary to the fairness of a proceeding by requiring a trial

court to consider juror statements in cases where a juror relied on racial stereotypes or animus to convict a defendant. Before

Pena-Rodriguez, racial bias was not recognized as a constitutionally-required exception to the jury shield law. Forty-two

jurisdictions follow the Federal Rules for juror statements, and only eleven of those jurisdictions had previously carved out an

exception for racial bias. See Exhibit B at 9-10. Specifically, Louisiana, which follows the current Federal Rules of Evidence

Rule 606(b), did not allow for a racial bias exception. See La. C.E. art. 606(B). Consequently, Pena-Rodriguez has effected

“a profound and sweeping change” by requiring trial courts to consider jurors’ statements in cases where juror racial bias is

alleged. Whorton, 549 U.S. at 421. Pena-Rodriguez constitutes a watershed rule that must be applied retroactively.

Mr. Robertson, an African-American male, was tried twice for first-degree murder and both times was

sentenced to death. After Mr. Robertson’s second trial, post-conviction counsel (who was not undersigned counsel)

conducted juror interviews. During the interviews, counsel learned that one of the jurors, Johnny Robin, harbored

racial animus towards African-Americans generally and towards Mr. Robertson specifically. In denying postconviction relief, the district court did not specify on which ground it was denying the claim, stating “basically what

I see is that they’re either procedurally barred, they’ve been previously litigated by the Supreme Court on appeal,

or that the allegations of ineffective assistance of counsel are not valid...” Exhibit 10 at 3. In its’ Procedural

Objections and Answer to Amended Petition for Post-Conviction Relief (hereinafter “State’s Answer”), the State

argued that the “jury shield law” prevented admission of the juror declaration demonstrating the racial animus.

In an interview with post-conviction counsel,’ Juror Johnny Robin stated:

My impression of Robertson was that he was trashy. He kept his head down throughout and never

looked up. At sentencing his lawyer argued that he grew up in a bad environment and didn’t have

a father figure. I don’t think that matters. Lots of black people don’t have fathers — they don’t know

who their fathers are. That’s just them.

Exhibit D at 4 (Declaration of Johnny Robin). During the interview, juror Robin made other statements indicating

racial animus, including: “I paid for my children to go to Catholic schools so they wouldn’t have to be around the

violence and poor schools in Baton Rouge. Baton Rouge schools are becoming a lot like New Orleans public

schools. They’re becoming all black.” Exhibit E at 2 (Affidavit of Alison McCrary). Mr. Robin further stated that:

Robertson was just a low life like other black people. He [Robertson] was in trouble with the cops

his whole life. He and his family were poor and lived in poverty. We [the jurors] knew Robertson

was trashy because of the evidence we heard. That’s all we could say about him.

A lot of violence is coming to Baton Rouge now that so many people have moved here from New

Orleans. A lot of people in Baton Rouge are moving to the suburbs like in Zachary to put their

children in better schools and to get away from the poor neighborhoods. All this crime is committed

by them.

Id. When asked what he meant when he referred to “them,” Mr. Robin explained,

You know. People like him [Robertson]. Yeah, you know, pardon my French, but they’re all

n*ggers. You see it on TV. They took over the neighborhood where the old Japanese woman and

her husband lived [the victims]. Northern Baton Rouge is full of them now. I don’t know why they

commit crimes.

Id. Later in the conversation, Mr. Robin said, “[AJll of this violence is caused by young black people. Murders

and stuff, it’s all done by them n*ggers.” Jd. at 3.

The state district court never considered the effect of juror Robin’s racial animus on Applicant’s conviction

and sentence of death. In Pena-Rodriguez, the U.S. Supreme Court set forth the test for determining when racial

animus has infected a jury’s decision:

For the inquiry to proceed, there must be a showing that one or more jurors made statements

exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s

deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus

was a significant motivating factor in the juror’s vote to convict. Whether that threshold showing

has been satisfied is a matter committed to the substantial discretion of the trial court in light of all

* At the time of Mr. Robin’s interview, undersigned counsel was not yet post-conviction counsel.

7

the circumstances, including the content and timing of the alleged statements and the reliability of

the proffered evidence.

Exhibit B at 17. Juror Robin statements demonstrate “overt racial bias that cast serious doubt on the fairness and

impartiality of the jury’s deliberations and resulting verdict.” Id. Mr. Robin formed his opinions long before he sat

on Mr. Robertson’s jury and brought them into the jury box and deliberation room. As a result, the jury’s guilty

verdict and resulting death sentence is unreliable. The mere presence of one juror who is biased against the

' defendant is a structural defect. Rogers v. McMullen, 673 F.2d 1185, 1189 (11th Cir. 1982). Pena-Rodriguez

requires that the state district court now consider the evidence in support of Mr. Robertson’s juror misconduct claim

and determine whether Mr. Robin’s statements “tend to show that racial animus was a significant motivating factor

in the juror’s vote to convict.” Ex. B at 17. Mr. Robertson respectfully requests that this Court reopen and remand

Applicant’s juror misconduct claim for reconsideration in light of Pena-Rodriguez v. Colorado, 580 U.S. ___

(2017).

Ill. IF REMANDED, APPLICANT’S CLAIM(S) SHOULD BE RANDOMLY REALLOTTED

TO A NEW DISTRICT COURT JUDGE .

The right to a fair and impartial judge is integral to the justice system. No matter what the evidence is

against him, a defendant has a right to an impartial judge. Tumey v. Ohio, 273 U.S. 510, 535 (1927). The Louisiana

Code of Criminal Procedure! requires that a judge be recused when he “i]s biased, prejudiced, or personally

interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial...or [w]ould

be unable, for any other reason, to conduct a fair and impartial trial.” La. C.Cr.P. art. 671(A)(1) &(6). The

commentary to this code article reinforces the importance of impartiality ~ “courts should not be only impartial but

above the suspicion of partiality.” Jd. The Louisiana Code of Judicial Conduct reinforces the importance of the

court’s impartiality: “A judge shall respect and comply with the law and shall act at all times in a manner that

promotes public confidence in the integrity and impartiality of the judiciary...”!! Canon 2(A). This Court has

asserted that “even the appearance of impartiality, as well as impartiality itself, outweighs the inconvenience caused

by the recusal of the trial judge.” State v Le Blanc, 367 So.2d 335, 341 (La. 1979). Thus, “a judge should disqualify

himself if a reasonable person, knowing all the relevant circumstances, would harbor doubts about the judge’s

impartiality.” U.S. v. Landerman, 109 F.3d 1053, 1066 (5th Cir. 1997). Statements and decisions by a judge may

'° The Code of Civil Procedure likewise requires recusal when a judge “‘is biased, prejudiced, or interested in the cause or its

outcome or biased or prejudiced toward or against the parties or the parties’ attorneys or any witness to such an extent that he

would be unable to conduct fair and impartial proceedings.” La. C.C.P. art. 151.

'! The Code of Judicial Conduct further states that: “An independent and honorable judiciary is indispensable to justice in our

society. A judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of

conduct so that the integrity and independence of the judiciary may be preserved...”—-Canon ]—and that “[a] judge should

disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned and shall

disqualify himself or herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule...”

Canon 3(C).

also “support an actual bias claim if they reveal favoritism or antagonism such that fair judgement is impossible.”!*

Buntion v. Quarterman, 524 F.3d 664, 673 (5th Cir. 2008).

Judge Erwin has abandoned the “appearance of impartiality.” See Le Blanc, 367 So.2d at 341. On February

3, 2017, Judge Erwin was involved ina disagreement with a group of women in Sammy’s Grill, a local Baton Rouge

restaurant. During the course of the argument, one of the women, Ms. Johnson, accused Judge Erwin of calling her

an*gger. See Exhibit F (The Advocate article). The East Baton Rouge Parish Sheriff’s deputies were called in

‘response.'? /d. at 1. Upon information and belief, Ms. Johnson has filed a complaint against Judge Erwin with the

Louisiana Judiciary Committee, which is currently pending. Sammy’s Grill, the restaurant where the argument

took place, banned Judge Erwin as a result of the incident. Exhibit F at 2. Local papers, including The Advocate,

reported on the incident on February 8, 2017 and in the days following. See id; Exhibits F - I (local articles).

Quickly, the incident made national and international news. See Exhibits J— O (national and international articles).

Though no criminal or civil charges were brought by the East Baton Rouge Parish Sheriff's Office against

Judge Erwin, the damage has been done. In the public’s eye, Judge Erwin is a racist and cannot preside over cases

African-Americans in an impartial manner.

This is not the first time that Judge Erwin’s impartiality has been called into question. Applicant has filed

at least three motions to recuse Judge Erwin, spanning over a decade, from 2001 to 2014. In 2014, Mr. Robertson

filed a Motion to Recuse due to inappropriate comments made by Judge Erwin during the Atkins evidentiary

hearing.'* See Exhibit P (2014 Motion to Recuse). However, even before Applicant’s Atkins hearing, Judge Erwin

demonstrated that he could not remain impartial in Applicant’s case. During a February 2008 hearing, Judge Erwin

denied relief on all of Mr. Robertson’s post-conviction claims, including Atkins. Exhibit 10 at 3 (February 14, 2008

transcript). Once this Court reversed the denial as to the Atkins claim and remanded the case to conduct an

evidentiary hearing— see State v. Robertson, 2008-1116 (La. 09/04/09); 17 So. 3d 960—Judge Erwin expressed

confusion regarding this Court’s remand:

The Court: As | understand it the supreme court has ordered a hearing to determine whether

or not Mr. Robertson is mentally retarded to the extent that he couldn’t be executed.

Ms. Burns: That’s correct, Your Honor.

The Court: My question is didn’t we go through this in the trial?

? For example, in Webbe v. McGhie Land Title Co., 549 F.2d 1358 (10th Cir. 1977), the trial judge told one party it was “stuck”

before allowing it to make any arguments and shortly thereafter granted summary judgment against it. /d. at 1360. That judge

made his decision after only hearing oral argument from the other side and without reading any of the depositions. /d@ In

remanding the case, the Tenth Circuit called for the judge’s recusal since “there [was] not a reasonable likelihood that the trial

judge in the instant case, having now been reversed for granting summary judgment, could later preside over the trial of this

matter in a fair and impartial manner, or . . . with detachment and objectivity.” /d. at 1361. The Fifth Circuit, when later

discussing this case, agreed that “[i]t [was] not surprising that this conduct was found to indicate bias.” U.S. v. Harrelson, 754

F.2d 1153, 1165 (Sth Cir. 1985).

"After the incident, the NAACP held a press conference and called for Judge Erwin to be immediately suspended and

investigated. Exhibit H.

'’ During the second setting of Applicant’s Atkins hearing, (held on April 21, 22, and 23, 2014), Judge Erwin made the comment

that was the focus of the recusal motion and subsequent writ: “I’m sure that pretty much everybody on death row is retarded

now.” Exhibit P at 1 (2014 Motion to Recuse); Exhibit 6.

Ms. Burns: Well, Judge, that was our position, and the court, upon review, have determined

that we have to now, in postconviction, have that hearing and address that matter

more fully.

Mr. Trenticosta: ... This court ruled that Mr. Robertson is not mentally retarded.

The Court: { understand that. Because we — I heard it twice; two different times, and two

different cases that he wasn’t mentally retarded. So, I didn’t — I just kind of took

them at their word. So, what did the supreme court decide?

Mr. Degravelles: The supreme court decided that there should be an evidentiary hearing.

The Court: Why, John? I mean, we’re going to have it. I’m just curious. I haven’t read the

decision.

Exhibit Q (1/22/10 hearing transcript) at 2-3 (emphasis added). Given Judge Erwin’s historical comments in

Applicant’s case as well as the public incident at Sammy’s Grill, Applicant’s case, if remanded, must be randomly

allotted to a new district court judge to “preserve the appearance of impartiality.” Le Blanc, 367 So.2d at 341.

IV. CONCLUSION

WHEREFORE, Applicant respectfully urges this Court to grant his Writ Application, vacate his death

sentence and impose a mandatory sentence of life without parole. In the alternative, Applicant requests that this

Court remand his Atkins claim to the state district court for reconsideration in light of Moore v. Texas, 581 U.S. ___

(2017). Applicant further requests that this Court remand his juror misconduct claim to the state district court for

reconsideration in light of Pena-Rodriguez v. Colorado, 580 U.S. ___ (2017). Finally, Applicant respectfully

requests that, if this Court is inclined to grant his request(s) for a remand, that his case be randomly assigned to new

district court judge.

Respectfully submitted,

V. =

cai Cléments (La Bar No. 21978)

Capital Pos Enviction Project of Louisiana

1340 Poydras Street, Suite 1700

New Orleans, LA 70112

Telephone: (504) 212-2110

Fax: (504) 212-2130

Matilde Carbia (La Bar No. 32834)

Law Office of Matilde J. Carbia, LLC

P.O. Box 3192

Stuart, FL 34995

Telephone: (504) 434-0863

ON BEHALF OF APPLICANT, ALLEN ROBERTSON, JR.

10

VERIFICATION OF COUNSEL

STATE OF LOUISIANA

PARISH OF ORLEANS

BEFORE ME, the undersigned authority, personally came and appeared:

Gary P. Clements

Who, being duly sworn, deposed and stated that he is the attorney for Applicant Allen Robertson, Jr., that the

allegations contained in the foregoing writ application are true and correct to best of his information, knowledge,

and belief, that the exhibits attached hereto are true and correct copies of originals, and that a copy of the foregoing

writ application has been delivered via U.S. Certified Mail to the District Attorney for the Parish of East Baton

Rouge and the Honorable Michael R. Erwin by United States Postal Service on this date.

Par Gok

cay Clem ts (La Bar No. 21978)

SWORN TO AND Wee

before-me, this > ay of ¢ ST, UA @ , 2017

?

La. Notary # 46444

My conimission expires at death.

1]