# Petition — KIRKPATRICK v. LOUISIANA (No. 83-6527) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1795%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text OR IIE Ee RECEIVED APR3 .1964 Orrivt ut THE CLERK SUPREME couRT Ys IN THE re, SUPREME COURT OF THE UNITED STATES "- 83-6527 FREDERICK KIRKPATRICK Petitioner versus STATE OF LOUISIANA Respondent PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF THE UNITED STATES PATRICK L. DURUSAU P. 0. BOX 859 JENA, LOUISIANA 71342 (388) 992-6623 COUNSEL FOR FREDERICK KIRKPATRICK QUESTIONS PRESENTED 1. Whether the Louisiana Supreme Court miscontrued California v. Ramos, U.S. » 203 S. Co. S446, 77 L.. Bd. 2d. 1171 (1983) and the requirements of the Eighth and Fourteenth Amendments in concluding that the trial court did not err in refusing to answer the sentencing jury's question, "According to the law, does life mean natural death or does it mean a predetermined number of years?" 2. Whether the Louisiana Supreme Court misconstrued California v. Ramos, op # » 103 S. Ct. 3446, 77 L. Ed. 2d. 1171 (1983) as eliminating the requirements of Lockett v. Ohio, 438 U.S. 586 (1978), Woodson v. North Carolina, 428 U.S. 280 (1976), Roberts v. Louisiana, 428 U.S. 325 (1976) and the Eighth and Fourteenth Amendments that the sentencing jury must not be precluded from considering any mitigating factors by its conclusion that the wholly proper and legally correct definition of a life sentence in Louisiana as imprisonment until natural death may be withheld from the sentencing jury. TABLE OF CONTENTS WPPPROOMO PRODOREOS. 06... k esc ccc ccccccccess. Citation to Opinion Below...........sce.cecce5c.,, ° WUUSOGACEIOR. occ ccan PRMOUSSTO POO eee eeE ses ceseve Constitutional and Statutory Provisions EE Ee ee a Statement of the Case A. Course of the ND 0s Vis Nebdscesda;, B. Facts Material to Questions Presented..... C. The Federal Questions Raised and Decided Appendices* Appendix A - Opinion of the Louisiana Supreme Court Appendix B - Trial Transcript Relevant to Issues Presented in Petition for Certiorari Attached TABLE OF AUTHORITIES California v. Ramos, U.S. © 103 BS. COcccescccse 3446, 77 L. Ed. 2d. 1171 (1983) ' STATUTES OO BiGcGs GOR. 1B ic occcschaseccceseeseen eee Oe Re De G5 Wes cakne0nesneiencdceseeanbasnrsee IN THE SUPREME COURT OF THE UNITED STATES NO. FREDERICK KIRKPATRICK Petitioner versus STATE OF LOUISIANA Respondent PETITION FOR WRIT OF CER™IORARI TO THE SUPREME COURT OF THE UNITED STATES Petitioner, Frederick Kirkpatrick, respectfully prays that a writ of certiorari issue to review the judgment of the Supreme Court of Louisiana in this case. CITATION TO OPINIONS BELOW: The opinion of the Louisiana Supreme Court is reported at 44° So. 2d. 546 (La. 1983), and is attached as Appendix A. The order of the Court denying rehearing is cited at 443 So. 2d. 546 (La. 1983), and appears in Appendix A. JURISDICTION: Jurisdiction of this court is invoked under 28 U.S.C. Sec. 1257. The opinion of the Louisiana Supreme Court was rendered on November 28, 1983 and rehearing denied on January 6, 1984. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED: This case involves the Eighth Amendment to the Constitution of the United States which provides: Excessive bail shall not be required nor excessive finds imposed, nor cruel and unusual punishments inflicted; 1 and the Fourteenth Amendment to the Constitution of the United States, which provides in relevant part: (N)or 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. STATEMENT OF THE CASE: A. Course of Proceedings The petitioner, Frederick Kirkpatrick, was charged in St. Tammany Parish with the first degree murder of Steve Joseph Radoste in violation of LA-R.S. 14:30. He was convicted of first degree murder on November 10, 1982; the jury recommended that petitioner be put to death. On January 21, 1983, the petitioner was sentenced to death by electrocution. The Supreme Court of Louisiana affirmed the pecitioner's conviction of sentence on November 28, 1983. An application for rehearing was denied on January 6, 1984. B. Facts Material to Questions Presented After the jury returned its verdict of guilty of first degree murder against petitioner, the trial judge proceeded to instruct the jury on the sentencing phase of the trial. The jury wes instructed that if a unanimous conclusion could not be reached on a sentence of death, thenthe court would impose a sentence of "Life imprisonment without the benefit of probation, parole or suspension of sentence."' (Appendix B, page 1, lines 20-22; page _7 _, lines 11-14; page _7_, lines 15-18; page 8 , lines 3-5; page _91-, lines 7-8; page 9 , lines 10-11). The jury retired at 8:30 p.m. to begin its deliberation. At 10:10 p.m. the jury was returned to the courtroom in response to a note from the jury which read, "According to the law, does life mean until natural death, or does it mean a predetermined number of years?" (Appendix B, page 10 ) The trial judge refused to answer the question posed by the jury and reinstructed them in the same language on life imprisonment that had lead to the jury's confusion. (Appendix B, pp. 10 to 11) The jury retired at 10:15 p.m. and returned with a recommendation that petitioner be put to death at 10:30 p.m. C. The Federal Questions Raised and Decided Below Petitioner objected to the trial judge's statement to the jury prior to the jury being addressed by the trial judge on the question submitted by the jury. The Louisiana Supreme Court in considering the contention of petitioner, cited California v. Ramos, U.S. » 103 S. Ct. 3446, 77 L. Ed. 2d. 1171 (1983) as support for its conclusion that the trial judge need not explain the meaning of a life sentence in Louisiana. 1. THE COURT SHOULD GRANT CERTIORARI BECAUSE THE LOUISIANA SUPREME COURT MISCONSTRUED CALIFORNIA V. RAMOS, U.S. ; 103 S. CT.3446, 77 L. ED. 2D; THE ETGHTH AND FOURTEENTH AMENDMENT TO PERMIT A JURY TO DELIBERATE ON A POSSIBLE DEATH SENTENCE WITHOUT ACCURATE INFORMATION CONCERNING SENTENCES OTHER THAN DEATH. The question raised here is related co that which was raised in California v. Ramos, U.S. » 103 S. Ct. 3446, 77 L. Ed. 2d. 1171 (1983). In Ramos, Justice O'Connor writing for the majority, found no constitutional infirmity in a jury instruction which gave accurate information to the sentencing jury on the power of a State Governor to commute a life sentence. The Ramos decision focused on the accuracy of the information given the ability of the defendant to reply to that information. The Louisiana Supreme Court has construed Ramos to allow a sentencing jury to decide between a death sentence and life imprisonment, without accurate information on the nature of the life sentence in Louisiana. When a jury asks, “According to the law, does life mean until natural death, or does it mean a predetermined number of years?" and goes unanswered, diminution in reliability of the sentencing decision has occurred. This type of carte blanche speculation by the jury was expressly condemned by the majority in Ramos under the rationale previously set forth in Gardner v. Florida, 430 U. S. 349 (1977). It is particularly important for this court to grant certiorari to consider the Louisiana Supreme Court's misinterpre- tation of Ramos in view of the Standardless speculation as to the nature of a life sentence in Louisiana, which is concluded to be authorized under Ramos. In every capital case, the defendant is entitled to a jury accurately and fully charged with the range of sentencing options to be considered. Ramos does not authorize nor permit inaccurate jury charges concerning State law nor permitting a jury to make a capital sentencing decision unaware of the true consequetces of a decision to impose life imprisonment. At the least, this court should consider certiorari to disavow the Louisiana Supreme Court's reading of Ramos to allow juries to proceed in ignorance or misunderstanding of the law and to make capital sentencing decisions. 2. THE COURT SHOULD GRANT CERITORARI BECAUSE THE LOUISIANA SUPREME COURT MISCONSTRUED CALIFORNIA V. RAMOS, U.S. : 103 S. CT. 3446, 77 L. Ep. ° ELIMINATING THE REQUIREMENTS OF LOCKETT Vv. OHIO, 438 U.S. 586 (1978), WOODSON v. NORTH CAROLINA, oDe 976), ROBERTS v. LOUISIANA, &7Z8 oS 976) AND THE EIGHTH AND FO BY HOLDING THAT THE MITIGATING CIRCUMSTANCES OF LIFE IMPRISONMENT UNTIL NATURAL DEATH MAY BE WITHHELD FROM THE SENTENCING JURY. The majority in Ramos clearly held that the sentencing jury can be provided with accurate information concerning the true mature of a life sentence. That a life sentence in Louisiana is until natural death and not a predetermined number of years bear the same relationship to individualize sentencing as recognized by the court in Ramos. Additionally, the introduction of such information has long been recognized under the theory of mitigating factors as raised in Lockett v. Ohio, 438 U.S. 586 (1978), and individualized sentencing, Woodson v. North Carolina, 428 U.S. 280 (1976), Roberts v. Louisiana, 428 U.S. 325 (1976). The same reasoning in Ramos that Supports a sentencing jury being advised of the possibilities of parole on a life sentence so the jury can consider the probable future dangerousness of the defendant supports the Louisiana jury being advised that a life sentence is until 4 natural death and not a predetermined number of years. The Louisiana jury must be allowed to consider the defendant's lack of ability to do harm in the future as a sentencing factor in a capital case. The evenhandedness of the Eighth and Fourteenth Ameniments comand the reverse Jurek position. Jurek v. Texas, 428 U.S. 262 (1976). It is particularly important that this court grant certiorari to correct the misinterpretation of Ramos by the Louisiana Supreme Court in view of the positive violence which the Louisiana Supreme Court's holding does to the until recently, well settled iaw of mitigating circumstances and individualized sentencing. Tne Louisiana Supreme Court has held below that the sentencing jury may be deprived of the information concerning the defendant's lack of ability to do public harm in the future, i.e., reverse Jurek. This issue will arise in virtually every death penalty cause where the defendant wishes to argue the reverse Jurek position. The various States should not be allowed to foreclose the reverse Jurek position by a similar misreading of Ramos. CONCLUSION: For these reasons, a writ of certiorari should issue to review the judgment and opinion of the Louisiana Supreme Court. P. O. BOX 859 JENA, LOUISIANA 71342 (318) 992-6623 COUNSEL FOR FREDERICK KIRKPATRICK April 2, 1984 IN THE SUPREME COURT OF THE UNITED STATES NO. FREDERICK KIRKPATRICK Petitioner versus STATE OF LOUISIANA Respondent CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the petitioner's Motion for Leave to Proceed In Forma Pauperis and his affidavit in Support thereof, and a copy of the petitioner's Motion for Writ of Certiorari upon the respondent by depositing a copy of the aforesaid in the United States mail, first class, postage prepaid, addressed to: Honorable Marion B. Farmer, District Attorney, Parish of St. Tammany, 428 East Boston, Covington, Louisiana 70433, and to the Honorable William J. Guste, Attorney General of the State of Louisiana, 234 Loyola Avenue, Seventh Floor, New Orleans, Louisiana 70112 All parties required to be served have been served: Hon. Marion B. Farmer Hon. William J. Guste District Attorney Attorney General for the 428 East Boston State of Louisiana Covington, Louisiana 70433 234 Loyola Ave., Seventh Floor New Orleans, Louisiana 70112 This, this 2 / day of » 5S a , 1984. P. O. BOX 859 JENA, LOUISIANA 71342 (318) 992-6623 COUNSEL FOR FREDERICK KIRKPATRICK RECEIVED APR 3 .1984 Orrivt ur ite CLERK IN THE |__ SUPREME CouRT. US. SUPREME COURT OF THE UNITED STATES No. 83-6527 FREDERICK KIRKPATRICK Petitioner versus STATE OF LOUISIANA Respondent HHKKERKEREREREER ERI TT ITI TIO II TTI I A I A A A A A A I A I A A az a APPENDIX A FOI ITO ITT III IO III IA A A A A I; I MI A MR I PATRICK L. DURUSAU P. O. BOX 859 JENA, LOUISIANA 71342 (318) 992-6623 NOV 2.8 4o93 SUPREME COURT OF LOUISIANA NO. 83-KA-0734 STATE OF LOUISIANA versus FREDERICK KIRKPATRICK On Appeal from the 22nd Judicial] District Court, Parish of St. Tammany, State ot Louisiana, Honorable A. Clayton James, Juage, Presiding No. 96,597 . BLANCHE, Justice* pty wa Defendant, Frederick Kirkpatrick was indicted by the St. Tammany Parish Grand Jury on March 11, 1962, for the first degree murder of Steve Joseph Radoste?, @ violation of R.S. 4:30. D Py wore 2. Have you received within the past twelve months any income from a business, profession or other form of self-employment, or in the form of rent. payments, interests, dividends or other source? -/Kvo ~ - a. If the answer is yes, describe each source of income and state the amount received from each during the past twelve months. 3. Do you own any cash or checking or savings account? 0 a. If the answer is yes, state the total value of the items owned. 4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? wo a. If the answer is yes, describe the property and state its approximate value. 5. List the persons who are dependent upon you for support and state your relationship to those persons. nwo I understand that a false statement or answer to any questions in this affidavit will subject me to penalties for perjury. SWORN TO AND SUBSCRIBED before me, this_3/' day of Nic 1984. aug _ 4. | Laut My. Ly 1 ORDER wet the applicant proceed without prepayment of costs or fees or the necessity of giving security therefor. CERTIFICATE I do hereby certify that a copy of the above and foregoing was this day, was deposited in the United States mail properly addressed with postage prepaid to the Hon. Marion B. Farmer, District Attorney, Parish of St. Tammany, 428 E. Boston, Covington, Louisiana 70433 and to the Hon. William J. Guste, Attorney General for the State of Louisiana, 234 Loyola Avenue, Seventh Floor, New Orleans, Louisiana 70112. Jena, Louisiana, this Rank day of April, 1984. AL Kbe-— IN THE SUPREME COURT OF THE UNITED ses se RECEIVED APK 3 - 1984 gg - 6 5 27 OFFICE OF THE CLERK SUPREME COURT, U.S —— FREDERICK KIRKPATRICK Petitioner versus STATE OF LOUISIANA Respondent MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF CERTIORARI OUT OF TIME On motion of Frederick Kirkpatrick, appearing through undersigned counsel, and upon respectfully suggesting to the court that: i. The Louisiana Supreme Court affirmed the conviction and death sentence of mover on November 28, 1983 and denied rehearing on January 6, 1984. 2. The time for timely Petition for Writ of Certiorari to the Supreme Court of the United States expired on the 6th day of March, 1984. 3. The affidavit of Frederick Kirkpatrick is attached hereto as Exhibit No. 1 and states that Mr. Kirkpatrick was without notice of the denial of rehearing, without notice of his lack of counsel, and without notice of the sixty (60) day time period from denial of rehearing for timely filing of a Petition for Writ of Certiorari. 4. The affidavit of Patrick L. Durusau, counsel for Frederick Kirkpatrick is attached hereto as Exhibit No. 2 and states that: 1. Counsel was contacted to represent Frederick Kirkpatrick after the expiration of time for timely Petition for Writ of Certiorari to the Supreme Court of the United States. 2. Counsel did not receive the transcript of the trial of Frederick Kirkpatrick until March 22, 1984. 3. Counsel did not receive the Forma Pauperis Affidavit and Affidavits attached hereto as Exhibit No. 1 until March 31, 1984. » Movers requests leave of the court to file his Petition for Writs of Certiorari out of time due to his lack of notice of the denial of rehearing by the Louisiana Supreme Court, of the running of the sixty (60) day time period for timely Petition for Writ of Certiorari, of his lack of counsel and due to the diligence of mover in preparation and filing of the Petition for Writs of Certiorari upon entry of undersignee counsel on behalf of mover. 6. The untimeliness of the petition which accompanies this motion is not jurisdictional, where the statute (28 U.S.C. § 2101 (d)) authorizes this court to fix the time by rule. Schacht v. United States, 398 U.S. 58, 63-64 (1970), Taglianetti v. United States, 394 U.S. 316 (1969). ae The court shall exercise its discretion to waive the normal time limits: first, because death is unique and irreversible; second, because the seriousness of the constitutional errors involved; and, third, because of the abandonment of mover, an incarcerated indigent defender, by his Louisiana assigned counsel. 8. Mover's Petition for Writ of Certiorari was filed with the Clerk,oSupremé Court 6£.the‘United States, on the same day as this Motion for Leave to File Petition for Writs of Certiorari Out of Time. P. O. BOX 895 JENA, LOUISIANA. 71342 (318) 992-6623 COIINCE! BAD LCoocncorry erpwopAaTDTryv ORDER Considering the foregoing Motion and attached Affidavits, it is ordered that Frederick Kirkpatrick be granted leave to file his Petition for Writ of Certiorari and the Clerk, Supreme Court of the United States is directed to accept the Petition for Writs of Certiorari. DATE: JUSTICE EXHIBIT #1 STATE OF LOUISIANA ‘ PARISH OF WEST FELICIANA BEFORE ME, the undersigned authority, personally came and appeared Frederick Kirkpatrick, who after being duly sworn, did depose and say that: . 1. That he is the defendant in that action known as "State of Louisiana versus Frederick Kirkpatrick, bearing docket number 83-KA-0734 of the docket of the Supreme Court of Louisiana. 2. On November 28, 1983, the Louisiana Supreme Court affirmed the conviction and death sentence of Frederick Kirkpatrick and after timely filing for rehearing, denied a rehearing on his appeal on January 6, 1984. 3. Frederick Kirkpatrick was not notified by his then counsel, Thomas J. Ford, Jr. of the denial of rehearing by the Louisiana Supreme Court on January 6, 1984; nor was he advised that the said Thomas J. Ford, Jr. was withdrawing as his counsel of record; nor was he advised that he has sixty (60) days from January 6, 1984 within which to apply for Writs of Certiorari to the United States Supreme Court to review the action of the Louisiana Supreme Court. 4. Frederick Kirkpatrick was without legal representation during the time period following January 6, 1984. 5. Patrick L. Durusau, attorney at law, agreed on March 20, 1984 to represent Frederick Kirkpatrick without compensation in connection with his application for Writs of Certiorari to review the judgment of the Louisiana Supreme Court in the above captioned matter. a SWORN TO AND SUBSCRIBED before me, this raf), t day of March . 1984. EXHIBIT #2 IN THE SUPREME COURT OF THE UNITED STATES NO. FREDERICK KIRKPATRICK Petitioner versus STATE OF LOUISIANA Respondent STATE OF LOUISIANA AFFIDAVIT PARISH OF LASALLE BEFORE ME, the undersigned authority, personally came and appeared, Patrick L. Durusau, who, after being duly sworn did depose and say that: 1. On March 20, 1984, he agreed to represent Frederick Kirkpatrick without compensation on his writ of certiorari to the Supreme Court of the United States to review his conviction and death sentence previously affirmed by the Louisiana Supreme Court. 2. On March 22, 1984, he received the record of the trial herein below. 3. Om March 31, 1984, he received from Frederick Kirkpatrick his Affidavit in Support of Motion to Proceed on Appeal In Forma Pauperis and his affidavit attached in support of his Motion for Leave to File Out of Time. 4. Upon information and belief, affiant believes that petitioner has not deliberately delayed in filing his Petition for Writ of Certiorari and was without notice or knowledge of the denial of rehearing by the Louisiana Supreme Court which began the time delays for timely application. 5. Upon information and belief, affiant believes that petitioner was without counsel following the denial of rehearing by the Louisiana Supreme Court until affiant's agreement to enter the case on March 20, KEE ikg--—— SWORN TO SND SUBSCRIBED before me, this gp/ day of 1984. Aor l , 1984. vy CERTIFICATE I do hereby certify that a copy of the above and foregoing was this day, was deposited in the United States mail properly addressed with postage prepaid to the Hon. Marion B. Farmer, District Attorney, Parish of St. Tammany, 428 E. Boston, Covington, Louisiana 70433 and to the Hon. William J. Guste, Attorney General for the State of Louisiana, 234 Loyola Avenue, Seventh Floor, New Orleans, Louisiana 70112. Jena, Louisiana, this Qf day of April, 1984. 88-6527 STATE OF LOUISIANA PARISH OF WEST FELICIANA BEFORE ME, the undersigned authority, personally came and appeared Frederick Kirkpatrick, who after being duly sworn, did depose and say that: 1. That he is the defendant in that action known as "State of Louisiana versus Frederick Kirkpatrick, bearing docket number 83-KA-0734 of the docket of the Supreme Court of Louisiana. 2. On November 28, 1983, the Louisiana Supreme Court affirmed the conviction and death sentence of Frederick Kirkpatrick and after timely filing for rehearing, denied a rehearing on his appeal on January 6, 1984. 3. Frederick Kirkpatrick was not notified by his then counsel, Thomas J. Ford, Jr. of the denial of rehearing by the Louisiana Supreme Court on January 6, 1984; nor was he advised that the said Thomas J. Ford, Jr. was withdrawing as his counsel of record; nor was he advised that he has sixty (60) days from January 6, 1984 within which to apply for Writs of Certiorari to the United States Supreme Court to review the action of the Louisiana Supreme Court. 4. Frederick Kirkpatrick was without legal representation during the time period following January 6, 1984. 5. Patrick L. Durusau, attorney at law, agreed on March 20, 1984 to represent Frederick Kirkpatrick without compensation in connection with his application for Writs of Certiorari to review the judgment of the Louisiana Supreme Court in the above captioned matter. SWORN TO AND SUBSCRIBED before me, this 3) 7 day of Marc h J ’ 1984. UNITED STATES SUPREME COURT CASE NO: STATE OF LOUISIANA VERSUS FREDERICK KIRKPATRICK (Supreme Court of Louisiana) (Case No. 83-KA-0734) AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED ON APPEAL IN FORMA PAUPERIS I, Frederick Kirkpatrick, being first duly sworn, depose and say that I am the defendant, in the above entitled case; that in Support of my motion to proceed on appeal without being required to prepay fees, costs or give security therefor, I state that because of my poverty I am unable to pay the cost of said Proceeding or to give security therefor; that I believe I am entitled to redress; and that the issues which I desire to present on appeal are the following: I further swear that the responses which I have made to the questions and instruction below relating to my ability to pay the cost of Prosecuting the appeal are true. 1. Are you presently employed? )Vo a. If the answer is yes, state the amount of your salary or wages per month and give the name and address of your employer. b. If the answer is no, state thedate of your last employment and the amount of the salary and wages per month which you received. /g9#/ ‘¥ 2. Have you received within the past twelve months any income from a business, profession or other form of self-employment, or in the form of rent payments, interests, dividends or other source? ~Wo ~ a. If the answer is yes, describe each source of income and state the amount received from each during the past twelve months. 3. Do you own any cash or checking or savings account? sv0 a. If the answer is yes, state the total value of the items owned. 4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? nwo a. If the answer is ves, describe the property and state its approximate value. 5. List the persons who are dependent upon you for support and state your relationship to those persons. nro I understand that a false statement or answer to any questions in this affidavit will subject me to penalties for perjury. SWORN TO AND SUBSCRIBED before me, this 377 day of March , 1984, " ORDER Let the applicant proceed without prepayment of costs or fees or the necessity of giving security therefor. JUSTICE --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1795%3A1. Public record. Not legal advice.