Petition — Parisi v. Louisiana

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Supi me Court, U. 8.

FILED

FEB 14 1977

Supreme Court of the United States

OCTOBER TERM, 1976

No. 7671122

STATE OF LOUISIANA,

Respondent,

versus

JAMES PARISI, ROBERT D. WEREKAU, IR..

KENNETH P. BAKUTIS, and FRANK BRITTON,

Petitioners-Relators.

PETITION FOR WRIT OF CERTIORARI TO REVIEW A

JUDGMENT OF THE SUPREME COURT OF LOUISIANA,

IN CASE NO. 58529, OF THE DOCKET OF THAT COURT

GERARD H. SCHREIBER

8137 Oleander Street

New Orleans, Louisiana 70118

Attorney for Petitioners-Relators

SCOFIELDS’ QUALITY PRINTERS, P.O. BOX 63096, N. O.. LA. 70163 - 504/822-1611

MICHAEL RODAK, JR., CLERK

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TABLE OF CONTENTS

Page

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QUESTION PRESENTED FOR REVIEW .......... 2

PERTINENT CONSTITUTIONAL

PROVISIONS, STATUTES, AND RULES

D ̃ — ::. —- 8 2

Z 6

r ̃ . ¶ ᷣ 19

CERTIFICATE OF SERVICE ll. 30

TABLE OF AUTHORITIES

Cases:

Chambers v. Maroney, 90 S.Ct. 1971, 398 U.S.

. ³ m ˙¹wmm ẽwwÿw ¼ —dà2 ee 25

City of Monroe v. Dugas, et al, 203 La. 974. 14

cu 26

r 25

Silverthorn Lumber Co. v. U.S., 251 U.S. 385,

D EEE: eS Fee een Ss 25

ZZ 27

State v. Finklea, 313 S 2d 2244 26

State v. Lemoine, 152 So. 907 ............... 21.22.23

State v. Sullivan, 55 Go. 56 cece cece 22

Constitutional Provisions and Statutes:

United States Constitution

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TABLE OF AUTHORITIES (Continued)

Page

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eee comes ces 3,6,24,28

r clin nen indus Seale 3,6,20,28

Amendment XIWVWVWV 3,6,20,22,28

United States Code

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Constitution of 1974 of the State of Louisiana

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reer 4

F thi chins binke Obes pp etwas «vanteaatien 4

La. Code of Criminal Procedure:

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BEE «cc eee ee e e 4.26

La. Revised Statutes

ese 4.17. 22.23.26

eee eee 4. 13.17.22. 23.26

rere 5.13.14. 18. 18.27. 28.29

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ene 5.13. 15.17.23

reer ee 5.13.15. 17.23

TABLE OF n (Continued)

Page

Rules:

Lm. Gupwame Court, eee 4

Criminal District Court for the Parish of

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5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

STATE OF LOUISIANA,

Respondent,

versus

JAMES PARISI, ROBERT D. WERKAU, IR..

KENNETH P. BAKUTIS and FRANK BRITTON,

Petitioners-Relators.

PETITION FOR WRIT OF CERTIORARI TO REVIEW

A JUDGMENT OF THE SUPREME COURT OF

LOUISIANA, IN CASE NO. 58529, OF THE DOCKET

OF THAT COURT

Petitioners James Parisi, Robert D. Werkau, Jr.,

Kenneth P. Bakutis and Frank Britton, petition the

Court to issue a writ of certiorari to review the judg-

ment of the Supreme Court of Louisiana dated

November 19, 1976, in Case No. 58529 of the docket of

that court, denying the issuance of a writ of review in

the matter entitled “State of Louisiana v. James Parisi,

Robert D. Werkau, Jr., Kenneth P. Bakutis and Frank

Britton”, Case No. 254-139 of the docket of the Criminal

District Court for the Parish of Orleans, Louisiana,

Section “J”.

oe

A copy of the judgment and the reasons for judgment

of the Supreme Court of Louisiana is printed in the

appendix.

JURISDICTION

The judgment of the Supreme Court of Louisiana

was dated November 19, 1976. No rehearing was

applied for as Rule IX of the Louisiana Supreme Court

Rules provides that a rehearing will not be considered

when the judgment of the court was denying an

application for a writ of certiorari. The jurisdiction of

this court is invoked under the provisions of 28 U.S.C.

Section 1257(3).

QUESTION PRESENTED FOR REVIEW

The question presented for review is whether or not

the trial judge, in the absence of a jury, denied defen-

dants the rights guaranteed to them under

Amendments IV, V, VI, VIII and XIV of the United

States Constitution.

PERTINENT CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES OF COURT

1. United States Constitution, Amendment IV, (The

right of the people to be secure in their persons,

houses, papers and effects, ag: ist unreasonable

searches and seizures shall not be violated .. .)

2. United States Constitution, Amendment V, (No

person shall be ... deprived of life, liberty, or

property without due process of law.)

United States Constitution, Amendment VI, (In

all criminal prosecutions, the accused shall en-

joy the right ... to be confronted with the

witnesses against him)

United States Constitution, Amendment VIII, (. . .

excessive fines (shall not) be imposed, nor cruel

and unusual punishments inflicted).

United States Constitution, Amendment XTV, (.. .

nor shall any state deprive any person of life,

liberty, or property, without due process of law

nor deny to any person within its jurisdiction the

equal protection of the laws).

Constitution of 1974 of the State of Louisiana, Art.

1, Sect. 2. (No person shall be deprived of life,

liberty cr property, except by due process of law).

Constitution of 1974 of the State of Louisiana, Art.

1, Sect. 3, (No person shall be denied equal protec-

tion of the laws...)

Constitution of 1974 of the State of Louisiana, Art.

1. Sect. 5, (Every person shall be secure in his per-

son, property, communications, houses, papers,

and effects against unreasonable searches,

seizures, or invasions of privacy. Any person

adversely affected by a search or seizure con-

ducted in violation of this Section shall have

standing to raise its illegality in the appropriate

court).

i Pear ame a ek

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10.

11.

12.

13.

14.

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Constitution of 1974 of the State of Louisiana, Art.

1, Sect. 16, (. . An accused is entitled to confront

and cross-examine the witnesses against him)

Constitution of 1974 of the State of Louisiana, Art.

1, Sect. 20, (No law shall subject any person... to

cruel, excessive, or unusual punishment .. .)

Louisiana Supreme Court Rules, Rule 9, (An

application for rehearing will not be considered

when the court has merely granted or denied an

application for a writ of certiorari or a remedial

or other supervisory writ, .. ).

Louisiana Code of Criminal Procedure, Art. 213,

(A peace officer may, without a warrant, arrest a

person when . (2) The person to be arrested has

committed a felony, although not in the presence

of the officer; (3) the peace officer has reasonable

cause to believe that the person to be arrested has

committed an offense although not in the

presence of the officer.)

Louisiana Revised Statutes, Title 14, Sect. 25, (An

accessory after the fact is any person, who, after

the commission of a felony, shall harbor, conceal,

or aid the offender, knowing or having reasonable

ground to believe that he has committed the

felony, and with the intent that he may avoid or

escape irom arrest, trial, conviction, or punish-

ment.)

Louisiana Revised Statutes, Title 14, Sec. 34,

(Aggravated Battery is a battery committed with

a dangerous weapon)

15. Louisiana Revised Statutes, Title 14, Sect. 108,

16.

17.

18.

(Resisting an officer is the intentional opposition

or resistance to, or obstruction of, an individual

acting in his official capacity and authorized by

law to make a lawful arrest... when the offender

knows or has reason to know that the person

arresting. . is acting in his official capacity. The

phrase “obstruction of” as used herein shall, in

addition to its common meaning, significance

and connotation mean: (a) Flight by one sought to

be arrested‘ before the arresting officer can

restrain him and after notice is given that he is

under arrest. (b) Any violence toward or any

resistance or opposition to the arresting party is

actually placed under arrest and before he is in-

carcerated in jail .. .)

Louisiana Revised Statutes, Title 40, Sect. 966,

( . it shall be unlawful for any person knowingly

and intentionally: (1) To produce, manufacture,

distribute or dispense or possess with intent to

produce, manufacture, distribute, or dispense, a

controlled dangerous substance classified in

Schedule I; .. .)

Louisiana Revised Statutes, Title 40, Sect. 968,

(. ..itshall be unlawful for any person knowingly

or intentionally; (1) To... possess with intent to

... distribute ... a controlled dangerous sub-

stance classified in Schedule III.)

*

Louisiana Revised Statutes, Title 40, Sect. 964,

(.. Schedule I.. . C. Hallucinogens. . . (10) Mari-

juana ... Schedule III... B. Depressants... (1)

Any substance which contains any quantity of a

derivative of barbituric acid, or any salt of a

derivative of barbituric acid.)

STATEMENT OF CASE

This is a case wherein the relators were denied the

rights guaranteed to them by:

1. Amendment IV of the United States Con-

stitution (the right to be secure in their per-

sons, houses and effects from un-

reasonable searches and seizures);

2. Amendment V of the United States Con-

stitution (the right not to be deprived of

their liberty without due process of law);

3. Amendment VI of the United States Con-

stitution (the right to be confronted with

the witnesses against him);

4. Amendment VIII of the United States Con-

stitution (the right not to be imposed with

excessive fines or inflicted with cruel and

unusual punishment);

5. Amendment XIV of the United States Con-

stitution (the right to immunity from the

denial of due process of law and equal

protection of the laws by a state).

This is evident from the following facts:

On February 24, 1976, at about 1:30 A.M., the relators,

James Parisi, Robert D. Werkau, Jr., Kenneth P.

7

Bakutis and Frank Britton were all peacefully present

in a mobile home parked in a crowded trailer park in

suburban New Orleans. They had travelled in the

mobile home from their homes in Illinois to visit New

Orleans for the Mardi Gras. They had arrived earlier

on the previous day. A

Except for a small light in the cab, all of the lights

were out in the mobile home.

As previously stated, all of the relators were

peacefully present in the mobile home minding their

own business. James Parisi, Robert D. Werkau, Jr., and

Kenneth P. Bakutis were asleep in one part of the

mobile home; Frank Britton was having intercourse

with a female by the name of Barbara Conn who was

also a defendant with them, but who is not involved in

this appeal, in another part of the mobile home.

The New Orleans Police received a call that

someone had been shot at the trailer park.

At this point a little local flavor has to be injected to

understand within its proper framework what oc-

curred nex.

As previously stated the relators had travelled to

New Orleans to join in the Mardi Gras festivities. Mar-

di Gras Day, being the Tuesday before Ash Wednes-

day, falls on different days in different years. In 1976 it

fell on February 24th the day on which the relators

were arrested.

Hundreds of thousands of visitors pour into New

Orleans every year to participate in the abandon that

Mardi Gras promises. The king of Mardi Gras, Rex, is

called “the Lord of Misrule”. Mardi Gras events start

months before Mardi Gras day. For several weeks

before Mardi Gras there is a succession of parades

each one viewed by hundreds of thousands of people.

The policing of the Mardi Gras events greatly taxes

the time and patience of the New Orleans Police. They

have to work 12 to 18 hours per day handling excited

people; moving hundreds of thousands of people

around; directing the flow of traffic of tens of

thousands of vehicles in a minimum time with a

minimum of accidents to the point whereby, by the

time Mardi Gras comes, they are tired out; their nerves

are raw; their patience exhausted: and they are inclin-

ed to overreact, even if they are not naturally inclined

in that direction anyway.

This is the subjective state of affairs as it existed

when the police were informed that someone had been

shot at the trailer park. At least three, and probably

many more police cars responded to the call. Police

Officers Marcel David, Carl Schmidt, Earl Blache and

Sergeant Fayard were among those who responded.

On arriving at the scene they found a man, among

hundreds of other people who were lodged at the

trailer park, who complained that he had been shot by

one or more men allegedly from Chicago.

We must pause momentarily in the recitation of the

facts to observe that on the trial of the case

1) the police did not know the name of the

alleged victim;

2) the police did not even record the nature

and extent of his injuries;

3) no evidence was offered to prove that a

person was shot, if in fact there was one,

let alone by whom he was shot;

4) no attempt was made to identify the

relators or anyone of them as the

assailant.

As far as the record in this case is concerned, the

alleged victim could have been feigning injury; could

have injured himself; could have been injured by

someone other than one of the relators; could have

been injured in some way other than by gunshot; could

have spilled tomato catsup on himself.

The police had never seen the alleged victim before;

never had any prior contact with him; never saw him

afterwards; never had any earthly reason to believe

that the man was telling the truth.

Here we would like to point out the lack of probable

cause for the subsequent conduct of the police.

Without stopping for verification, the police set out

to find a trailer, any trailer, with an Illinois license

plate on it, presuming that therein would be found the

culprits.

En route, they met another unidentified witness. As

with the previous witness, they had never seen this

witness before; had never had any previous contact

with him; never have seen him since; and considered

him so reliable that they did not even record his name.

This man allegedly pointed out the mobile home in

which the relators were present as the haven of the

assailants.

Armed with the unverified and uncorroborated in-

formation of the two unidentified and unreliable in-

formants, and with no other probation, despite the fact

that there were hundreds of other witnesses in the

vicinity, the police led by Officer David went charg-

ing up to the mobile home.

Again, let us pause to observe that at this time

everything was quiet in and about the mobile home:

1) the lights were out;

2) there was no outward signs of activity in-

side;

3) the mobile home was at rest and parked;

4) nothreat emanated from inside the mobile

home against the police or any other per-

son.

It was subsequently revealed that the police did not

have a warrant to search the mobile home.

Mention of the attendant circumstances is made to

point out that no condition existed obviating the

necessity for having a search warrant and ample op-

portunity was afforded to obtain one. The relators

11

were not running away: they were not trying to

destroy evidence: they were not threatening the police

with a weapon; they had no ability to remove goods or

evidence from the jurisdiction. No “exigent cir-

cumstances” existed to excuse the police from ob-

taining a search warrant.

The police led by Officer David proceeded to bang on

the side of the mobile home. Robert D. Werkau, Jr., who

owned the mobile home, sleepily and only partially

dressed, opened the door. When he did the police

screaming an identity and flashing flashlights in his

face yanked the door open spilling Werkau outside

into the night.

What followed thereafter must have been sheer

bedlam. Imagine the reaction of the relators Parisi,

Werkau and Bakutis, being rousted from their sleep by

a bunch of wild men flashing flashlights into their

sleep-dimmed eyes while they barked incoherent or-

ders; and hustling them around while they were half

asleep and half dressed, for some unannounced

reason.

Imagine the surprised and startled reaction of Frank

Britton, who was having intercourse with Barbara

Conn and was interrupted by a group of storm

troopers flashing blinding lights into his face and

shouting unintelligible identification and orders.

Some way or other without someone getting killed, the

police hustled all of the relators including Barbara

Conn out of the mobile home. Who did what to whom,

and with what and how is as inconclusive and con-

tradictory as all of the other evidence in this case. Four

police said they did, and four relators said they did not.

So on the balance, the finger-pointing and the weight

of the evidence is even, and the state can surely not be

considered to have proven the guilt of the relators

beyond a reasonable doubt.

Having now rousted the relators out of the mobile

home, the police lined them up outside, half-naked,

spread-legged, against the side of the mobile home, ex-

cept for Frank Britton, who was spread-eagled on the

ground, and Barbara Conn, whose femininity they

chivalrously respected by treating her more gently.

The police then reentered the mobile home and search-

ed it.

At this point an ample second opportunity was af-

forded the police to obtain a search warrant if they de-

sired. If an emergency or “exigent circumstances”

previously existed it no longer existed. The relators

now had no ability to run away; gain possession of a

weapon; destroy evidence; or remove goods or

evidence from the jurisdiction. But the police obvious-

ly did not think that they were required to observe this

constitutional safeguard even though they were

sworn to uphold and defend it.

Sometime thereafter, the police placed the relators,

including Barbara Conn, under arrest, although

relators defy anyone to establish from the testimony

adduced on the trial of this case who did so, and to

whom, when, for what, why and how. At no time were

the relators identified by anyone although there were

hundreds of witnesses present on the scene available

for that purpose.

13

Nonetheless, all of the relators, and Barbara Conn

were taken to the Central Lock-up of the New Orleans

Police Department, and booked with Aggravated

Battery (LRS 14:34), Possession of Barbiturates with

Intent to Distribute (LRS 40:968), Possession of Mari-

juana (LRS 40:966), and Resisting Arrest (LRS 14:108).

Despite being booked with four violations, the District

Attorney filed only two Bills of Information against

the relators. Case No. 254-139, for resisting and ob-

structing the police while making a lawful arrest,

which is the case before this court, and Case No. 254-

140, for possession of barbiturates with intent to dis-

tribute.

Barbara Conn was allowed to plead guilty in Case

No. 254-139 and was sentenced to serve fifteen days in

the Parish Prison with credit for time served. Case No.

254-140, as to her, was nolle prosequied.

Prior to entering upon the trial of the two cases,

relators through counsel, filed numerous motions in

both cases. At that time relators Parisi, Werkau and

Bakutis were represented by the counsel before this

court, Gerard H. Schreiber, Esq., who filed the motions

and relator, Britton, was represented by Howard Mc-

Curdy, Esq., a Public Defender, who joined in the

motions.

In this application for certiorari all of the relators,

Parisi, Werkau, Bakutis and Britton are represented

by the same counsel, Gerard H. Schreiber, Esq.

The motions filed in both cases have to be men-

tioned, as they were companion cases, and one motion

14

filed in Case No. 254-140 is significant to the case at

bar.

In Case No. 254-139, the relators filed

1) A Brady Motion;

2) A Motion to Quash;

3) An Application for a Bill of Particulars.

The Brady Motion was answered by the state which

was deemed sufficient by the defense, but the court

never ruled on the motion or its answer prior to trial.

The Motion to Quash urged the unconstitutionality

of LRS 14:108 and contained a rule nisi against the

state. It was never answered by the state, nor was it

ruled upon by the court before trial.

In other words, the court overlooked ruling on both

motions.

The Application for a Bill of Particulars asked for

and received the following particulars:

1) The “lawful arrest” that the police of-

ficers was making was because the “defen-

dants were believed in possession of Con-

trolled Dangerous Substances”;

2) The “law or laws” that the defendants

were violating was “the defendants were

Qa ens

believed to have violated Articles 40:966 and

40:968 of the Louisiana Criminal Code

3) The “act of obstruction” for which the

defendants were charged occurred under

LRS 14:108(a) and (b)“;

4) The arresting officers did not have a

search warrant;

5) The arresting officers did not have an

arrest warrant;

6) The arrest was made under “Article

213(2)” of the Louisiana Code of Criminal

Procedure.

In Case No. 254-140, the relators filed similar and

additional motions, one of which is significant to the

case at bar. The defense filed a motion to disclose all

informers and the state answered that there was no

informer involved“.

This is very important as when Case No. 254-139 was

tried, it developed that the whole basis for the search

and subsequent arrest was the two “informers” — the

man allegedly shot, and the man who pointed out the

mobile home.

On June 7, 1976, Case No. 254-140 was tried without a

jury and all of the relators were found not guilty.

Immediately, afterwards, Case No. 254-139 was

called for trial despite the fact that there were undis-

oo”.

posed motions extant, one of which, the Motion tc

Quash the Bill of Information on the grounds of the

unconstitutionality of LRS 14:108, was scheduled fora

hearing on that day on the rule nisi.

Rule IX of the Rules of the Criminal District Court

for the Parish of Orleans provides:

Each party opposing the motion shall serve

and file no later than one day before the hear-

ing a brief written statement of the reasons ad-

vanced in opposition to the motion and a list of

citations of the authorities on which he relies.

This requirement was not observed. The motion was

not ruled on. The case proceeded to trial.

The state immediately moved as follows:

Your Honor, at this time the state would like to

amend its Bill of Particulars in 254-139, its

Paragraph 2 thereof. The question asked is the

exact nature of the lawful arrest that Officers

David, Schmidt and Blache made as alleged in

the Bill of Information, the state would amend

its answer at this time to say that all or either

of these defendants were arrested for

aggravated battery or being an accessory af-

ter the fact in that they did after the commis-

sion of a felony, either harbor, conceal or aid

the offender, knowing or having reasonable

grounds to believe he committed a felony.

(Emphasis added).

== 2

17

It should be remembered that the state had original-

ly answered the Application for a Bill of Particulars

by saying that the “lawful arrest” was the “defendants

were believed in possession of Controlled Dangerous

Substances” and “to have violated Articles 40:966 and

40:968 of the Louisiana Criminal Code (Emphasis

added).

The words “Louisiana Criminal Code” is emphasiz-

ed because there are no Articles 40:966 and 40:968 of the

Louisiana Criminal Code.

But the defendants having been found not guilty in

Case No. 254-140 wherein they were charged with

“possession of a controlled dangerous substance, to-

wit: Barbiturates”, the state saw the necessity for

changing its game plan otherwise they had no “lawful

arrest” to rely on and tried to amend its Answer to the

Bill of Particulars, but in so doing

1) it charged the violation of two separate

and distinct crimes in the disjunctive, viz,

Aggravated Battery (LRS 14:34) or

Accessory After the Fact (LRS 14:25)

which is prohibited by Louisiana law, and,

2) it failed to correct the other averment of its

answer that “the defendants were be-

lieved to have violated Articles 40:966 and

40:968 of the Louisiana Criminal Code

which if not wrong before, was surely

wrong now and should have been amended

also.

The defense moved to quash the Bill of Information

as amended by the state, because it charged the defen-

dants in the disjunctive contrary to law. The court

seemed to agree that if this had occurred in a Bill of In-

formation, the motion would be correct, but, since it

occurred in a Bill of Particulars, it was not.

It was pointed out to the court that according to Loui-

siana law an answer to a Bill of Particulars becomes

part of the Bill of Information, but the court persisted

in its ruling.

The case was tried without a jury and the court found

all four defendants “guilty as charged”.

The defense filed a Motion for a New Trial based on

1) The court’s oversight in failing to rule on

the Motion to Quash the Bill of Informa-

tion because of the unconstitutionality of

LRS 14:108;

2) The denial of due process because the

defendants were arrested without a

warrant and as a consequence of an uncon-

stitutional search; 4

3) Theverdict was contrary to the law and the

evidence because the state did not prove an

essential element of the crime charged;

The defense filed a Motion in Arrest of Judgment

1) Reurging the constitutionality of LRS

14: 108;

19

2) The court’s ruling denying the Motion to

Quash based on the disjunctive charge.

The court denied both motions.

Although Barbara Conn had been sentenced to serve

only fifteen (15) days in the Parish Prison, relators

Parisi, Werkau and Bakutis were each sentenced to

serve four months in the Parish Prison; to pay a fine of

$500 or to serve forty-five additional days in the Par-

ish Prison in default thereof; and to pay court costs of

$60.00 or serve fifteen additional days in the Parish

Prison in default. Relator, Britton, was sentenced to

serve six months in the Parish Prison.

Application was made to the Supreme Court of Loui-

siana for a writ of review which was denied on Novem-

ber 19, 1976. A copy of the judgment of that court is

printed herein in the Appendix.

No rehearing was requested as Rule IX. Section 6 of

the Louisiana Supreme Court Rules provides same

will not be considered.

ARGUMENT

This is a classic case of overreaction by a police

department under stress and the propensity of a court

to defend the integrity of the police resulting in the

constitutional rights of a group of citizens being

grossly violated.

The importance of this case is not minimized

because of the insignificance of the offense — resist-

ing arrest — for therein lies the first constitutional

outrage. The relators Parisi, Werkau and Bakutis were

sentenced to four months in jail plus forty-five days in

default of a $500 fine plus $60.00 court costs or to serve

fifteen more days in the Parish Prison in default

thereof, and the relator, Britton, was sentenced to six

months in jail. Their co-defendant, Barbara Conn, had

been sentenced to fifteen days for the same offense.

It is a matter of common knowledge that the

sentence given Barbara Conn is generally that which

is given for resisting arrest, rather than that meted to

Parisi, Werkau, Bakutis and Britton.

Can it be inferred that Conn got an insignificant

sentence because she pleaded guilty, whereas Parisi,

Werkau, Bakutis and Britton were wasted because

they pleaded not guilty requiring their being tried?

The Fourteenth Amendment to the United States

Constitution requires that all citizens have equal

protection of the laws. Equal protection imports equal

application. Perhaps not on complete parity, but not

such disparity as to outrage justice.

Also, since the sentence given to the relators is in

complete disparity with that usually given for the

same offense, the defendants were subjected to ex-

cessive fines” and “cruel and unusual punishments”.

U. S. Constitution, Amendment VIII.

Relators do not mean to infer that Barbara Conn

should have been given the same sentence that they

received. To the contrary, they assert that the sen-

21

tence Barbara Conn was given is that customarily

given for “resisting arrest” and the severe sentence

given them constitutes an excessive, cruel and un-

usual punishment and unequal application of the law

in violation of their constitutional rights.

Equal protection also requires that the state abide

by the rules established by itself.

When the state failed to conform with Rule IX of the

Rules of the Criminal District Court for the Parish of

Orleans and assert an opposition to the Motion to

Quash the Bill of Information the court should have

sustained the motion and the trial never should have

been held.

Since the court did not impose the same obligation

on the state as its rules impose on the defense, the

defense were denied “equal protection of the laws“.

Sometimes the line between due process” and

“equal protection” is obscure. However it is felt that

when established state law is not followed by the court

that established it, both “equal protection” and “due

process” are denied.

In State v. Lemoine, 152 So. 907, the Louisiana

Supreme Court held that the particulars furnished by

the state in an answer to an Application for a Bill of

Particulars is “deemed, in law, to constitute a part of

the bill of indictment”.

When the state verbally amended its Bill of Informa-

tion to provide that

... all or either of these defendants were

arrested for aggravated battery or being an

accessory after the fact....

according to State v. Lemoine, supra, the state had

amended the Bill of Information. If this be true, then

the defendants had been charged with committing

Aggravated Battery (LRS 14:34) or Accessory After

the Fact (LRS 14:25). But these are two different crimes

charged disjunctively and Louisiana law prohibits

charging “disjunctively or alternatively” in the same

Bill of Information.

In State v. Sullivan, 55 So. 588, the Louisiana

Supreme Court held that “an indictment or informa-

tion must not charge a party disjunctively or alter-

natively in such manner as to leave it uncertain what

is relied on as the accusation against him”.

Louisiana Code of Criminal Procedure, Article 6.

Unless the context clearly indicates otherwise:

1) The word “and” indicates the conjunctive:

2) The word “or” indicates the disjunctive;

Relators were tried under a Bill of Information that

by definition of the law of Louisiana and decision of

the Louisiana Supreme Court was fatally defective

denying to defendants due process and equal protec-

tion of the law. United States Constitution,

Amendments V and XIV.

ee

Mention must be made of another inconsistency in

the Bill of Information as extended by the Answer to

Application for a Bill of Particulars.

The state’s answer stated that the defendants were

believed to have violated Articles 40:966 and 40:968 of

the Louisiana Criminal Code. (Emphasis added).

There are no Articles 40:966 and 40:968 of the Loui-

siana Criminal Code. There are Articles 40:966 and

40:968 of the Louisiana Revised Statutes, but these are

articles of Title 40 of the Louisiana Revised Statutes,

whereas the Criminal Code is Title 14 of the Louisiana

Revised Statutes and all articles of this title are pre-

ceded by the suffix 14. for example, Aggravated

Battery (14:34), Accessory After the Fact (14:25). LRS

40:966 and 40:968 each apply to Controlled Dangerous

Substances.

The relators having been found not guilty in Case

No. 254-140 relating to possession of a controlled

dangerous substance with intent to distribute, the

state sought to amend the Bill of Information in Case

No. 254-139 by amending their answer to the Applica-

tion for a Bill of Particulars, which they did in one

respect but not in both respects.

So that after the amendment was made, applying the

decision of the Louisiana Supreme Court in State v.

Lemoine, supra, the relators were charged with resist-

ing a “lawful arrest” for Aggravated Battery or

Accessory After the Fact and the “law or laws” that

they were violating were believed to be “Articles

40:966 and 40:968 of the Louisiana Criminal Code

“which was disjunctive and inconsistent.

It will be remembered that the state answered the

Application for a Bill of Particulars saying the police

had neither a search warrant nor an arrest warrant.

Addressing ourselves first to the lack of a search

warrant, it was pointed out in the Statement of Facts

that the opportunity was afforded to the police twice to

obtain a search warrant — once when they first ap-

proached the motor home, and again when all of the

relators were outside of the motor home and in

custody.

It was also pointed out in the Statement of Facts that

in Case No. 254-140, the allied case to the case at bar,

the state answered there were no “informers”.

But it developed on the trial of the case at bar that the

case originated as a consequence of a warrantless

search based on not one but two “informers” — the

man allegedly shot and the man who pointed out the

mobile home — neither of whom were asked to identify

the defendants at the scene of the alleged offense nor

were they called to testify at the trial. As a matter of

fact, the police testified they did not even know their

names.

Aside from all of the other unconstitutional con-

siderations, relators were never afforded the right

granted to them by the Sixth Amendment of the Unit-

ed States Constitution, namely, that of being confront-

ed with the witnesses against them.

When a search is made without a warrant based on

information furnished by an “informer” a greater

burden rests on the state to prove the reliability of the

“informer” than in cases where a search is made with

a warrant based on information furnished by an “in-

former”. Hart v. U. S., 162 F. 2d 74. And when the relia-

bility of the “informer” is made an issue, the burden

rests on the state to prove the informer's reliability.

Also, when a search is made without a warrant to

make it justified “exigent circumstances” must exist

in addition to probable cause. Chambers v. Maroney,

90 S. Ct. 1971, 399 U. S. 42. The burden is on the state to

prove “exigent circumstances” which are limited to

a) Response to an emergency,

b) Hot pursuit of a fleeing felon;

c) Goods or evidence in process of destruc-

tion; and

d) Goods or evidence about to be removed

from the jurisdiction.

Prescinding from the reversible fact that the state

misled the defense into believing there were no in-

formers” in this case, the state made no effort to prove

“reliability”, nor “exigent circumstances”.

Applying the “fruit of the poisonous tree doctrine”

(Silverthorn Lumber Co. v. U. S., 251 U. S. 385, 40 S. Ct.

182) to this case forces the conclusion that since its

genesis was iniquitous, relators should have been

found not guilty.

This conclusion carries over to the next point of

constitutional transgression, viz, the relators were ar-

rested without a warrant of arrest.

Louisiana requires that a police officer have a

warrant except when “the person to be arrested has

committed a felony, although not in the presence of the

officer.“ La. C. Cr. P. Art. 213(2).

Relators contend that the state, therefore, had the

burden of proving that they had committed a felony.

The state had to prove that they had committed an

aggravated battery (LRS 14:34) or had harbored a felon

knowing or having reasonable grounds to believe that

he committed a felony with the intent that he may

avoid or escape from arrest, trial, conviction or

punishment (LRS 14:25).

In State v. Finklea, 313 S. 2d 224, the Supreme Court

of Louisiana said that “when there is no warrant,

police may arrest only when the one arrested has com-

mitted a felony or has committed a misdemeanor in

his presence

Since the police had no evidence that the relators

had committed a felony, the police had no authority to

arrest them without a warrant, and their arrest was

not a “lawful arrest” and the relators had every right

to resist the police, if in fact they did.

In City of Monroe v. Dugas, et al, 203 La. 974, 14 8 2d

781, the Louisiana Supreme Court said in a similar

case wherein the defendants were charged with resist-

ing a warrantless arrest

27

The right of personal liberty is one of the fun-

damental rights guaranteed to every citizen,

and any unlawful interference with it may be

resisted. Every person has a right to resist an

unlawful arrest, and in preventing such

restraint of his liberty, he may use such force

as may be necessary ....

A prosecution will not lie for resisting an of-

ficer where the officer is attempting to make

an unlawful arrest.

Lastly, relators requests that the scrutiny of the

court be directed toward the unconstitutionality of Ar-

ticle 108 of the Louisiana Criminal Code entitled

“Resisting An Officer”. (LRS 14:108).

It will be observed that this article reprobates “the

intentional opposition or resistance to or obstruction

of” an officer and further defines with certainty what

is meant by “obstruction of”. But the article supplies

no definition for “opposition or resistance to” thereby

leaving this definition to be surnlied by the whim of

the arresting officers, the prosecutor or the trial court.

A standard of constitutional requirement is that

criminal laws be sufficiently definite to adequately in-

form persons charged of the nature of the charge

against them to enable them to prepare their defense

thereby affording “due process” and “equal protec-

tion”.

In State v. Clark, 325 S 2d 802, the Louisiana

Supreme Court said

It is well settled that in order to comply with

Constitutional safeguards, penal statutes

must describe the unlawful conduct with suf-

ficient particularity and clarity that ordinary

persons of reasonable intelligence are capable

of discerning its meaning and conforming

their conduct thereto.

Relators submit that LRS 14:108 lacks both par-

ticularity and clarity and is therefore un-

constitutional.

In closing relators urge that their convictions were

in transgression of their unviolate rights guaranteed

to them by Amendments IV, V, VI, VIII and XIV of the

United States Constitution.

They were even denied “due process” in that the

evidence offered against them did not prove an essen-

ng element of the crime with which they were charg-

In answer to the Application for a Bill of Particulars,

the state replied that relators were charged under sub-

sections (a) and (b) to LRS 14:108 proscribing

(a) Flight by one sought to be arrested before

the arresting officer can restrain him and

after notice is given that he is under

arrest;

(b) Any violence toward or any resistance or

opposition to the arresting officer after

the arrested party is actually placed un-

der arrest and before he is incarcerated in

jail.

Considering these provisions LRS 14:108 proscribes

(a) Flight before restraint and after notice;

(b) Violence after an actual arrest.

In other words, it is not all resistance“, “opposi-

tion” or “obstruction” that is a crime. The article

specifically declares what act is a crime.

Previously it was stated that the record defies ascer-

tainment of who did what, to whom, how, when and

why. This was not an attempt to be facetious. It is a

true and accurate comment borne out by the record

itself.

This incertitude should have been reconciled in

favor of relators.

But the trial court chose to reconcile it in favor of the

arresting officers presumably, perhaps, on the theory

that seems to pervade criminal courts that all police-

men tell the truth while all defendants lie.

No presumption to this effect exists law. but there

is a presumption that “if a party has a witness within

his power to produce, and fails to produce him, and of-

fers no explanation for such failure, the presumption

or inference is that the witness, if produced, would not

support his case or would be against him”. State v.

Johnson, 151 La. 625, 92 So 139.

By the police’s own testimony there were hundreds

of impartial civilian witnesses to the occurrence

between them and relators. The state chose not to

produce them and offered no explanation for failing to

do so. This fact, alone, if no other, proves that the state

had no viable case against relators and relators were

denied their constitutional rights and a writ of cer-

tiorari should be granted herein.

Respectfully submitted,

GERARD H. SCHREIBER

Attorney for Relators

8137 Oleander Street

New Orleans, Louisiana 70118

Telephone No. (504) 482-7861

CERTIFICATE

I certify that copies of this petition were served on

the Attorney General of Louisiana and District At-

torney for the Parish of Orleans, Louisiana, by placing

a copy in the United States Mail, addressed to them at

their respective offices postage prepaid.

GERARD H. SCHREIBER

31

APPENDIX

SUPREME COURT OF LOUISIANA

NEW ORLEANS, 70112

November 19, 1976

STATE OF LOUISIANA

versus No. 58,529

WERKAU, JR.,

JAMES PARISI, ROBERT D.

KENNETH P. BAKUTIS AND FRANK BRITTON

In re: James Parisi, Robert D. Werkau, J r. Kenneth

p. Bakutis and Frank Britton, applying for writ

of certiorari and review.

Writ denied. There is no merit to this application.

/s/ FWS

/s/ JWS

/s/ AT, Jr.

A TRUE COPY a

Clerk’s Office 2 /s/ J

Supreme Court of Louisiana /s/ WFM

New Orleans /s/ JLD

November 19, 1976

/s/ Phil Trice

Deputy Clerk