Petition for Writ of Certiorari — Joseph Scott McKinney, Petitioner v. Louisiana

NO. 20-______

I N THE

____________

JOSEPH SCOTT MCKINNEY,

PETITIONER ,

V.

LOUISIANA

RESPONDENT .

____________

O N PETITION FOR A WRIT OF CERTIORARI TO THE

LOUISIANA SUPREME COURT

____________

PETITION FOR WRIT OF CERTIORARI

____________

Manasseh, Gill, Knipe & Bélanger, P.L.C.

André R. Bélanger

8075 Jefferson Hwy.

Baton Rouge, LA 70809

Telephone: 225-383-9703

Facsimile: 225-383-9704

Email: Andre@manassehandgill.com

QUESTION PRESENTED

The Constitution guarantees a criminal defendant’s meaningful opportunity to

present a complete defense. As of now, the Court has not directly addressed whether

a traditional Rape Shield statute violates the defendant’s right to present a defense.

In Michigan v. Lucas, the Court noted that Rape Shield statutes implicate the Sixth

Amendment to the extent that it prevents the defense from presenting evidence.

Though permitting exclusion of evidence on a case by case basis, the Court held

such exclusions must not be arbitrary or disproportionate to legitimate state

interests. As such, the question presented to the Court is whether Louisiana’s Rape

Shield law and the lower courts’ rulings contravened McKinney’s Sixth Amendment

confrontation right preventing his due process at trial?

i

PARTIES TO THE PROCEEDING

Joseph Scott McKinney and the State of Louisiana are parties to this suit. To

date, the State of Louisiana has been represented by the District Attorney’s Office

for the 23rd Judicial District Court.

However, due to the nature of this claim,

counsel would not be surprised to learn that the Louisiana Attorney General’s

Office has assumed the responsibility for opposing the petition for writ of certiorari.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING .............................................................................. ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES ......................................................................................... iv

OPINIONS BELOW ...................................................................................................... 1

JURISDICTIONAL STATEMENT ............................................................................... 1

PETITION FOR A WRIT OF CERTIORARI: RULE 10 STATEMENT ...................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 2

STATEMENT OF THE CASE...................................................................................... 2

STATEMENT OF FACTS ............................................................................................. 3

PETITION FOR A WRIT OF CERTIORARI ................................................................ 4

CONCLUSION............................................................................................................... 9

CERTIFICATE OF SERVICE ..................................................................................... 11

APPENDICES.............................................................................................................. 12

iii

TABLE OF AUTHORITIES

Cases

Page

Michigan v. Lucas

500 U.S. 145 (1991)

i, 2, 5

Crane v. Kentucky

476 U.S. 683 (1986)

5

Delaware v. Van Arsdall

475 U.S. 673 (1986)

5

Chambers v. Mississippi

410 U.S. 284 (1973)

8

Giglio v. United States

405 U.S. 150 (1972)

7

Fargo v. Douma

2016 U.S. Dist. LEXIS 133403

4

Lajoie v. Thompson

217 F.3d 663 (9th Cir. 2000)

5

White v. Coplan

399 F.3d 18 (1st Cir. 2005)

8

Wood v. Alaska

957 F.2d 1544 (9th Cir. 1992)

8

Agard v. Portunado

117 F.3d 696 (2nd Cir. 1997)

8

Stephens v. Miller

13 F.3d 988 (7th Cir. 1994)

8

iv

Statutes

28 U.S.C. 1257

2

La. Code Evid. Art. 412

i, 2, 4, 5, 6

Constitutional Provisions

Sixth Amendment

i, 1, 2, 4, 8,9

Other

Rape Shield Laws and the Sixth Amendment

128 U.Pa. L. Rev. 544 (January 1989)

v

8

OPINIONS BELOW

Joseph Scott McKinney was convicted of molestation on May 11, 2015. His

state post-conviction application was denied on September 10, 2019. In its ruling

germane to this petition, the trial court believed the parties adequately litigated the

victim’s prior sexual acts before trial. Both the Louisiana First Circuit Court of

Appeals and the United States Supreme Court denied relief without reasons.

JURISDICTIONAL STATEMENT

As stated above, McKinney filed a collateral attack that challenged the

constitutionality of applying Louisiana’s Rape Shield law which prevented him from

adequately impeaching adverse state witnesses contrary to the confrontation right

guaranteed by the Sixth Amendment.

This petition for writ of certiorari requests this Court’s review of that final

judgment rendered by the Louisiana Supreme Court pursuant to 28 U.S.C. 1257

since that ruling is repugnant to the United States’ constitutional provision

guaranteeing a defendant’s right to confront their accusers as articulated by the

Sixth Amendment.

PETITION FOR A WRIT OF CERTIORARI: RULE 10 STATEMENT

Joseph Scott McKinney respectfully petitions for a writ of certiorari to review

the judgment of the Louisiana Supreme Court in affirming the trial court’s denial of

his post-conviction application. This writ application requests the Court to directly

1

address whether traditional Rape Shield laws violates a defendant’s right to present

a defense.

This question was left open by Michigan v. Lucas leaving the federal

appellate courts to craft their own analysis of the topic for decades.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides, in

pertinent part:

In all criminal prosecutions, the accused shall enjoy the right…..

to be confronted with the witnesses against him….

In Michigan v. Lucas, this Court, in upholding Michigan’s Rape Shield

statutes’ notice and exclusion provisions, left open the question as to whether the

exclusion of evidence violated the defendant’s Sixth Amendment rights

STATEMENT OF CASE

The proceedings of this case are convoluted as it appears the accused was

tried and convicted within a few days of being charged. However, this case began as

an Aggravated Incest prosecution under one docket and prosecuted under a

different docket number for the newly filed bill that was this prosecution. This

tactic was presumably due to the state’s belief that recent statutory changes to the

law prevented Mr. McKinney’s prosecution for Aggravated Incest.

Mr. McKinney was convicted of molestation at a jury trial. On appeal the

case was remanded for a more onerous sentence with the appellate court deeming

2

the sentence imposed illegally lenient1. Mr. McKinney timely filed his state postconviction application challenging the Rape Shield statute among other errors. This

application was denied by the trial court and that decision would ultimately be

affirmed by the Louisiana Supreme Court on May 26, 2020. This Petition for Writ

of Certiorari now follows.

STATEMENT OF THE FACTS

The facts recited on appeal note that the complainant, CM, along with her

sister, moved from Indiana to Louisiana with the defendant after the death of their

mother. The defendant is CM’s father and grew up in Louisiana. At the time of

their move, CM was 12. In 2011, CM and her sister are placed into foster care and,

at some point, CM advises that the defendant began abusing her sexually since she

was 6 years old which continued when they moved to Louisiana. There are no

claims of physical or sexual abuse coming from the defendant’s other daughter.

Mr. McKinney attempted to offer evidence that the sexual abuse allegations

made against him were in response to harsh disciplinary measures he deployed for

her being sexually active with older boys. Admittedly, the discipline was excessive

and McKinney was punished for it. But, at trial, the only thing the jury was fully

aware of was his abuse and not why he acted in that matter.

Compounding

matters, the complainant had Bacterial Vaginosis which is implicitly caused by

sexual activity.

1 The original sentence was silent on the prohibition of the benefit of parole.

the trial court was required to specifically make that designation.

3

On remand,

Louisiana’s Rape Shield law prevented McKinney from offering any evidence

of prior sexual conduct by the complainant to explain his harsh disciplinary

measures and, more importantly, her motive to fabricate charges against him.

Additionally, it only left one conclusion that his sexual abuse caused the BV

condition she was treating and, in essence, corroborate her claim against him.

The trial court didn’t even grant McKinney an evidentiary hearing on

collateral attack. Were it to do so, Mr. Kinney would have offered an audio

recording of him confronting the complainant on her activities and, though not

directly related to this attack on the Rape Shield Law, evidence of false accusations

she made before on another family member. Collectively, these strands of evidence

would have impeached the complainant’s credibility and allowed the Louisiana

Court system to adequately review the integrity of this conviction.

PETITION FOR A WRIT OF CERTIORARI

The Sixth Amendment provides the accused with the right to confront

his accuser. Normally, this allows for cross examinations that attack

credibility and expose bias in testimony. Traditional Rape Shield laws

infringe upon the defendant’s ability to fully cross examine their

accusers.

This implicates the Sixth Amendment.

While such

limitations may be permitted in light of legitimate state concerns,

there is no “per se” rule mandating exclusion of evidence for prior

sexual behavior in sex offense cases. This Court’s jurisprudence

requires a case by case analysis and not a Draconian application of

state statutes. That said, this Court has never directly addressed

whether a traditional Rape Shield law violates a defendant’s right to

present a defense. We now ask the Court to consider the issue.

The Court has not directly addressed whether a traditional rape shield

statute violates a defendant’s right to present a defense. Fargo v. Douma, 2016 U.S.

4

Dist. LEXIS 133403. The Constitution guarantees criminal defendants a

meaningful opportunity to present a complete defense. Crane v. Kentucky, 476 U.S.

683, 106 S.Ct. 2142 (1986). The main purpose of the Confrontation Clause is to

ensure a criminal defendant the opportunity to cross examine witnesses testifying

against him. Deleware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431 (1986). In

Michigan v. Lucas, the Court recognized that the Sixth Amendment right to present

relevant testimony may, in appropriate cases, bow to accommodate other legitimate

interests in the criminal trial process. Lajoie v. Thompson, 217 F.3d 663 (2000).

However, the Court emphasized that the restrictions on a criminal defendant’s right

to confront witnesses and to present relevant evidence may not be arbitrary or

disproportionate to the purpose they are designed to serve. Id.

In this particular case, the defense sought the introduction of the

complainant’s prior sexual behavior for two purposes.

First, to impeach her

credibility and second to confront the complainant’s forensic examination.

The

grounds for impeachment for purposes of this petition is that McKinney’s harsh

disciplinary measures for her sexual conduct with older boys provided the

complainant with the motive to make these allegations2. That same evidence could

present a viable alternative source for the BV diagnosis and provide effective cross

examination of the forensic examiner. This evidence was precluded because of

Louisiana’s Rape Shield law.

2

The state post-conviction petition also noted an impeachment line of inquiry regarding

false accusations of sexual misconduct made against another family member.

5

The “Rape Shield” statute, La. Code Evid. Art. 412, excludes evidence of past

sexual behavior with limited exceptions. The pertinent provisions of the statute

read as follows:

A. (1) Opinion and reputation evidence; sexual assault

cases. When an accused is charged with a crime involving sexually

assaultive behavior, reputation or opinion evidence of the past sexual

behavior of the victim is not admissible.

(2) Other evidence; exceptions. When an accused is charged

with a crime involving sexually assaultive behavior, evidence of

specific instances of the victim's past sexual behavior is also not

admissible except for:

(a) Evidence of past sexual behavior with persons other than the

accused, upon the issue of whether or not the accused was the source of

semen or injury; provided that such evidence is limited to a period not

to exceed seventy-two hours prior to the time of the offense, and

further provided that the jury be instructed at the time and in its final

charge regarding the limited purpose for which the evidence is

admitted; or

(b) Evidence of past sexual behavior with the accused offered by

the accused upon the issue of whether or not the victim consented to

the sexually assaultive behavior.

6

The only issue in this case is whether the accusations CM has made against

Mr. McKinney are true or not. There is no direct testimonial evidence about Mr.

McKinney’s alleged molestation except for CM’s testimony.

If the jury has

reasonable doubt about CM’s credibility, Mr. McKinney would have been acquitted.

As such, CM’s credibility is all-important. See Giglio v. United States, 405 U.S. 150,

92 S.Ct. 763 (1972).

As stated above, the Rape Shield law places a statutory limitation upon the

evidence of the accuser’s sexual behavior at trial. Presumably, this statute is rooted

within the longstanding prohibition against propensity evidence. But, in this case,

Mr. McKinney wasn’t concerned with CM’s sexual propensity or even considered

arguing any “consensual” relationship. Rather, he wanted to paint the context from

which the accusations against him arose. Mr. McKinney believed that CM was

retaliating against him for severely disciplining her because he kept finding out

that she was sexually involved with older boys. The record has evidence of him

moving from place to place within a short time-frame but he was precluded from

saying why. Simply put, he would move whenever he discovered CM having sex

with older men.

It was his over reaction to this which resulted in the DCFS

investigation for physical abuse and his criminal conviction. Indeed, the state

offered this physical abuse as “other crimes” evidence but, while not denying his

conviction, Mr. McKinney could not fully explain his conduct to the jury. As alluded

to elsewhere, there was no evidence of sexual abuse until well after CM was placed

into foster care. Again, Mr. McKinney feels that this accusation against him is

7

retaliatory for his desire to punish those adults he believes was sexually active with

his daughter.

Additionally, Mr. McKinney was prejudiced by the application of the Rape

Shield statute because it prevented him from fully defending any inference that he

was the source of CM’s BV infection. At trial, Anne Troy, a pediatric forensic nurse,

was called to testify as an expert in child maltreatment. As part of her testimony,

Mrs. Troy stated that CM’s examination noted a “discharge” named Bacterial

Vaginosis (BV) which is associated with sexual conduct and could linger if

undiagnosed and not treated. Now, if the only evidence of sexual activity presented

is directed towards Mr. McKinney, whom must the jury conclude is responsible for

creating this condition? Obviously, there is only one person and that is Joseph Scott

McKinney though evidence could have and should have been presented that other

individuals could have been the source notwithstanding the Rape Shield statute.

Due process affords a criminal defendant the right of confrontation and cross

examination of the State's witnesses. Chambers v. Mississippi, 410 U.S. 284, 93

S.Ct. 1038 (1973). The Sixth Amendment rights of a defendant charged with rape

cannot be less important or less protected than the rights of a defendant accused of

any other serious crime. Tanford & Bocchino, Rape Victim Shield Laws and the

Sixth Amendment, 128 U. Pa. L. Rev. 544 (January 1989).

This view has been

followed by some federal circuit courts of appeal. See White v. Coplan, 399 F.3d 18

(1st Cir. 2005); Wood v. Alaska, 957 F.2d 1544 (9th Cir. 1992); Agard v. Portunado,

117 F.3d 696 (2nd Cir. 1997); Stephens v. Miller, 13 F.3d 998 (7th Cir. 1994).

8

In this case, the trial court committed an egregious error by not allowing the

effective cross examination of McKinney’s accuser at trial. On post-conviction, the

same court erred in not allowing an evidentiary hearing.

In that hearing,

McKinney contends he would have played a recording of him confronting his

accuser about the prior sexual relationships. This recording would give support to

his assertions that the acts occurred should she deny it and defeat assertions by the

state that he is fabricating. We note that it would be wrong to phrase this case as a

“he said/she said” case since complainant’s testimony is arguably supported by the

forensic examination suggesting the petitioner was the source of a vaginal infection.

The mere fact that this allegation can go unchallenged when the court and state

both know the defense could prevent evidence suggesting that another person was

the source for the infection is a clear violation of the defendant’s due process.

We humbly ask the Court to grant this writ and address a question that has

lingering for decades and define the parameters for which Rape Shield statutes

must yield to the Sixth Amendment.

CONCLUSION

Our constitution affords the accused the right to confront his accusers.

Vigorous cross examinations require probing into a witnesses’ motives, biases and

to directly challenge the evidence presented against him. In this case, Louisiana’s

Rape Shield law prohibited the petitioner from exposing the complainant’s bias and

challenge the forensic evidence offered against him.

9

Respectfully Submitted,

MANASSEH, GILL, KNIPE &

BÉLANGER, P.L.C.

/s/ André R. Bélanger

ANDRÉ R. BÉLANGER

Louisiana State Bar No. 26797

8075 Jefferson Hwy.

Baton Rouge, LA 70809

Telephone: 225-383-9703

Facsimile: 225-383-9704

Email: Andre@manassehandgill.com

Dated: August 24, 2020

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CERTIFICATE OF SERVICE

Undersigned counsel certifies that on this date, the 24th day of August 2020,

pursuant to Supreme Court Rules 29.3 and 29.4, the accompanying motion for leave

to proceed in forma pauperis and petition for a writ of certiorari was served on each

party to the above proceeding, or that party’s counsel, and on every other person

required to be served, by depositing an envelope containing these documents in the

United States mail properly addressed to each of them and with first-class postage

prepaid.

The names and addresses of those served are as follows:

Attorney for Plaintiff-Appellee

Mr. Ricky Babin

Office of the District Attorney

23rd JDC, Ascension Parish

P. O. Box 1899

Gonzales, LA 70707

Mr. Jeff Landry

Office of the Attorney General

P.O. Box 94005

Baton Rouge, LA 70804-9005

/s/ André R. Bélanger

ANDRÉ R. BÉLANGER

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APPENDICES

APPENDIX A:

Trial Court’s Post-Conviction Ruling

APPENDIX B:

Decision of the Louisiana First Circuit Court of Appeals

APPENDIX C:

Decision of the Louisiana Supreme Court

Respectfully Submitted,

MANASSEH, GILL, KNIPE &

BÉLANGER, P.L.C.

/s/ André R. Bélanger

ANDRÉ R. BÉLANGER

Louisiana State Bar No. 26797

8075 Jefferson Hwy.

Baton Rouge, LA 70809

Telephone: 225-383-9703

Facsimile: 225-383-9704

Email: Andre@manassehandgill.com

Dated: August 24, 2020

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