Opposition Brief — Louisiana v. Cisco

BRIEF IN OPPOSITION TO LOUISIANA’S PETITION FOR

WRIT OF CERTIORARI TO THE LOUISIANA SUPREME COURT

I.

INTRODUCTION

In his direct appeal to the Louisiana Supreme Court, Respondent raised as the leading issue

the conflict of interest under which his trial attorney labored due to her simultaneous representation

of Respondent and his principal accuser, Donald “Lucky” DeLouche — the sheriff s deen who

spearheaded the criminal investigation in this case and who obtained the bulk of Respondent’s

numerous conflicting, and largely discredited, inculpatory statements.'! Respondent argued that

Holloway v. Arkansas, 435 U.S. 475 (1978), and Wheat v. United States, 486 U.S. 153 (1988),

required reversal of his convictions and death sentences because the trial court was expressly advised

of this serious conflict on several occasions, yet failed “either to appoint ida counsel or to take

adequate steps to ascertain whether the risk was too remote to warrant separate counsel.” Holloway,

435 US., at 434. See Brief on Appeal, at 55-58; Reply Brief, at 7-14. Alternatively, Respondent

urged that reversal was required under Cuyler v. Sullivan, 446 U.S. 335 (1980), and Mickens v.

Taylor, 535 U.S. 162 (2002), because the record amply demonstrated that lead counsel’s conflict of

interest adversely affected her performance. See Initial Brief, at 58-65; Reply Brief, at 14-21.

Respondent requested that in the event the court did not find reversible error in the record, that it

remand this matter to the trial court in order to conduct a hearing to address the ‘iain of interest

issues.” See Initial Brief, at 69; Reply Brief, at 21, n. 34.

' No forensic evidence linked Respondent to this crime, which went unsolved for over a-year. The

only other evidence inculpating respondent was the testimony of a hypnotized witness who identified

Respondent as a man she had seen at the location of the crime earlier that evening, even though this witness

had never been able to give a description of the person she identified to be Respondent. Conflicted trial

counsel did not move to suppress this identification, despite several meritorious grounds for its exclusion.

> Respondent additionally urged that, in the event the court did not reverse outright, a remand was

\ (continued.:.)

The State of Louisiana’s response to these claims was a blanket insistence that trial counsel’s

simultaneous representation of Respondent and the key witness against him did not create even ahint

of aconflict. See State’s Brief on Appeal, at 14-23.°

The Louisiana Supreme Court, after carefully parsing the complex and unusual facts of this

case, and surveying the legal landscape under state and federal law, granted Respondent a new trial

- on the basis of lead counsel’s actual conflict of interest. The lower court concluded that counsel’s

simultaneous representation of Respondent and one of the State’s key witnesses against him created

an actual conflict of interest because counsel could not competently cross-examine one of her clients

on behalf of the other. The court held that reversal was required because the trial court had actual

knowledge of the conflict of interest and acknowledged that, under Wheat, the issue required the

court’s attention, yet it failed either to take adequate steps to ensure that Respondent’s right to

competent representation was preserved or to obtain a knowing and intelligent waiver of his right

2(...continued) .

necessary because uncontradicted evidence in the record established that Respondent may be mentally

retarded, see infra at 8-9, n.10, and because the appellate record contained sufficient evidence — including

an eve-of-irial suicide attempt — to suggest that Respondent may not have been competent at the time of his

capital trial. Initial Brief at 89-90; Reply Brief, at 38-44.

> Before this Court, the District Attorney’s Office continues to insist that no conflict of interest arose

from trial counsel’s concurrent representation of Respondent and DeLouche. See State’s Brief at 5, 7-8, 20- _

21,23. Nonetheless, two days after filing the State’s petition for writ of certiorari in this Court, the District

Attorney’s Office successfully moved to recuse itself from further involvement in this case. See State's

Motion and Order for Recusation of the District Attorney's Office (“Recusation Motion”)(without attached

copy of the lower court decision in this case)(Appendix A hereto) and Order dated February 11, 2004

(Appendix B hereto). In the motion, the District Attorney urged that it had a conflict of interest because one

of the assistant district attorneys in the office, Richard Oustalet, Jr., currently represents DeLouche in various

civil matters, including a family law matter against DeLouche’s second ex-wife that Oustalet inherited from

Respondent’s trial attorney Oubre approximately a year ago. See Recusation Motion at | and Exhibit B

thereto. Indeed, as Custalet stated in the affidavit he supplied in support of the State’s Motion:

[A]s a result of this representation, affiant may have information which would be protected

-under the attorney-client privilege which may or may not be relevant to criminal proceedings

in which Donald “Lucky” DeLouche is a key witness for the State of Louisiana.

Affidavit attached as Exhibit B to Recusation Motion (Appendix A hereto).

: ae)

to conflict-free counsel.

The State of Louisiana, through the now-recused Calcasieu Parish District Attorney’s Office, —

has filed a petition for writ of certiorari to review the Louisiana Supreme Court’s opinion reversing

Respondent’s convictions and death sentences. As discussed below, the Louisiana Supreme Court

correctly decided this case under both state and federal law, and there is no legitimate reason for this

Court to review the lower court’s decision.

II.

STATEMENT OF PROCEEDINGS

On October 8, 1998, a Calcasieu Parish, Louisiana, grand jury indicted Respondent on three

counts of first degree murder for a triple homicide that occurred sometime after, midnight on July 6,

1997, at a convenience store located in Lake Charles, Loufsiana. R. 66. Prior to trial, the district

court granted Respondent’s unopposed motion to change venue on the basis of the extensive pretrial

publicity generated in the ‘case. R. 4-5. On October 17, 2000, a jury selected in East Baton Rouge

Parish returned verdicts of guilty as charged on all three counts. Following the presentation of

evidence on October 18, 2000, the jury imposed sentences of death on each count. R. 59-63. The

death sentences were formally imposed by the trial court on November 7, 2000. R. 64-65.

On December 3, 2003, the Louisiana Supreme Court reversed Respondent’s convictions and

death sentences by a 6-1 vote. The court held that lead trial counsel labored under an actual conflict

of interest that arose from her concurrent representation of Respondent and one of the key witnesses

against him at triai. Because the trial court was notified of this conflict on several occasions, yet did

not obtain a valid waiver of Respondent’s right to conflict-free counsel or otherwise ensure that his

right to counsel was protected, the court held, reversal was required.

On December 15, 2003, the State of Louisiana filed a timely application for rehearing in the

Louisiana Supreme Court, seeking to have the matter remanded to the trial court for a hearing on the

3

conflict of interest issue.* In an effort to prove that Respondent’s trial attorney, Evelyn Oubre, did

not labor under a conflict of interest at the time she represented Respondent, the State appended to

its application an affidavit it had obtained ao Oubre in which she protested that her concurrent

representation of Respondent and the principal witness against him did not create a conflict.°

On January 14, 2004, the Louisiana Supreme Court, by a 6-1 vote, denied the State of

Louisiana’s Application for Rehearing. —

On February 9, 2004, the State of Louisiana, through the oe Parish District Attorney’s

Office (“the District Attorney’s Office”), filed the instant petition for writ of certiorari in this Court,

seeking review of the Louisiana Supreme Court’s decision below. On February 11, 2004, the

District Attomey’s Office filed a motion in the trial court seeking to be recused from further

involvement in this case on the ground that it has a conflict of interest because one of the assistant

district attorneys in the Office currently represents Lucky DeLouche. See State's Motion and Order

* The State’s position on appeal had been directly contrary. Instead, it argued that the transparent

lack of any possible conflict of interest rendered frivolous Respondent’s request that the Louisiana Supreme

Court remand the case for a hearing to address the conflict issue in the event the court did not reverse

outright:

The defendant’s bold suggestion that his defense attorney, Ms. Oubre, the attorney who

fought so hard for him during pre-trial proceedings and at his trial, would behave unethically

and in violation of his constitutional rights is abhorrent, given the absolute lack of factual

or evidentiary support for the defendant’s assertion. In summary, no remand is necessary

in this-case, for this or any other issue.

State’s Brief on Appeal, at 25.

* Oubre, in turn, appended to the affidavit she submitted to assist the State of Louisiana selected-

documents obtained largely from court records in cases in which Oubre represented DeLouche and his then-

wife, Bethany Young, against their respective former spouses, and separate divorce proceedings in which

Oubre represented DeLouche against his second ex-wife — and Oubre’s former client - Bethany Young.

Oubre, in turn, secured from her client, DeLouche, a so-called limited waiver of his attorney-client privilege,

precisely so that she could present this evidence to the Louisiana Supreme Court in an effort to secure

rehearing for the State. If this Court were to have any doubts that Oubre’s representation of both Respondent

and DeLouche resulted in divided loyalties incompatible with Respondent’s nght to counsel, Oubre’s

decision to assist the State of Louisiana in its efforts to reverse the decision vacating Respondent’s

convictions and death sentences should put those doubts to rest.

4

for Recusation of the District Attorney's Office (Appendix A hereto); see also supra at 2,n.3. The

motion was granted that day. See Order, dated February 11, 2004 (Appendix B hereto).

The District Attorney’s Office has since notified undersigned counsel that the Louisiana

Attorney General’s Office will be handling this matter on behalf of the State of Louisiana and

apparently sent a letter to that effect to this Court. See Letter dated March 1, 2004, from C. Sigler

to M. Widder, and attachments (Appendix C hereto). ‘i of this date, however, this Court’s docket

does not reflect either that the District Attorney’s Office has withdrawn as counsel or that the

Attorney General has entered its appearance in this matter, although the Attorney General’s Office

mistakenly appears listed as counsel for Respondent.°

OI ET

° The Attorney General’s Office itself may have a conflict of interest in this matter. In the course

of one of the family law matters in which Respondent’s attorney, Evelyn Oubre, was representing DeLouche

at the time of she was appointed to represent Respondent in this case, DeLouche was accused of serious

criminal misconduct by his former wife, Rebecca Kellogg. Indeed, the charges were sufficiently

inflammatory that the family court record has been and remains sealed.

By the State’s own admission below, the criminal investigation of DeLouche arising from these

charges was turned over to the Attorney General’s Office. As the State explained below, in arguing that it

had not violated Brady v. Maryland,373 U.S. 83 (1963), by failing to disclose the criminal investigation of

DeLouche: .

[A]ll reports generated in the investigation of the criminal charges brought against Deputy

DeLouche (as well as the responsibility for investigating and prosecuting the offense, should

this be required), were turned over [to] the Louisiana Attorney General’s Office — the

Calcasieu Parish District Attorney’s Office did not even retain a copy of the filed report.

State’s Brief on Appeal, at 55.

Furthermore, the Attorney General’s Office investigated DeLouche’s second ex-wife, Bethany

Young, in at least two separate criminal matters, one of which was related to the investigation of DeLouche.

Young may weil be a witness in future proceedings regarding misconduct by DeLouche in Respondent’s

case. :

Accordingly, in the event this Court grants the State’s petition for writ of certiorari, Respondent

anticipates that he may have to file a motion to disqualify the Attorney General’s Office should it, in fact,

appear as counsel for the State of Louisiana.

ITI.

STATEMENT OF RELEVANT FACTS

A. Evelyn Oubre’s Client, Dep. Lucky DeLouche, Orchestrated the Murder

Investigation That Ultimately Led to Respondent’s Arrest and Personally

Conducted or Supervised Virtually Ail of Respondent’s Custodial Interrogations

Some time after midnight on January 6, 1997, Stacie Reeves, Marty LeBoeuf and Nicole

Guidry were shot to death in the cooler of KK’s Corner Conveniente Store in Lake Charles,

Louisiana. Their.bodies were discovered when a store employee arrived early that morning to open

the store for business.

Under DeLouche’s supervision, the Calcasieu Parish Violent Crimes Task Force (“the Task

Force”) began an extensive investigation, interviewing present and former employees of the store

and following up on a multitude of leads that were called in to the Task Force hotline in response

to its request that the public come forward ith any information it had.’ R. 3444. DeLouche enlisted

the FBI’s assistance as well. R. 3445. The lengthy snvdatl gation identified an assortment of suspects

— including the son of DeLouche’s employer, Wayne them the Calcasieu Parish Sheriff.

Despite numerous leads, the case went “unsolved” for over a year."

Although several individuals who passed the store on the night of the crime (as well as the

store owner and the father of one of the victims) reported that the store had closed normally at

midnight, the Task Force quickly focused on Virginia Johnson, an individual who had been if the

store at some point prior to closing, as the key to breaking the case. Johnson told investigators that

’ Throughout its existence, Del:ouche was the Director of the Task Force and supervised all the Task

Force investigations. R. 3430. Although, pursuant to the Task Force rotation system, another Sheriff's

Office employee, Larry Kelland, was initially assigned to be the lead investigator in the KK’s Corner murder

case, R. 3432, 3435, Kelland testified that “in actuality, Deputy DeLouche was the main investigator through

it. He did the report and everything else.” R. 4239.

~ © The case remains under investigation. A website for the Calcasieu Pansh Sheriff's Office lists the

KK’s Corner murders’ as a “cold case” still being investigated. See www.cpso.com/pages/coldcase/

UnsolvedCases.html.

she had gone to the store to buy gas between 11:35 and 11:45 p.m. on July 5,1997. R. 324. While

there, two white men entered the ane Johnson was able to describe the first man who entered

through the front doors in sufficient detail for investigators to draw a composite sketch. R. 326.

The second man entered the store as Johnson was exiting and they bumped into each ower. sis

was unable to provide a destription of this man, beyond stating that he was taller than the first one,

and, indeed, indicated that “she didn’t notice the second white male much and could not describe

him.” R. 325. The two men apparently made her uneasy for some reason and she drove away from

the store before she had finished pumping all the gas she had purchased into the tank of her pickup

truck. Id.

In order to discover more avout these two men, investigators had Johnson hypnotized. Under

hypnosis, Johnson stated thas the second man — whom she could stiil not describe — had a key chain

that had the words Marlboro and a rabbit head figure on it.

In an effort to identify more suspects, the Task Force enlisted help from the television show,

America’s Most Wanted (“AMW’”). The show aired a “re-enactment” of the crime on January 24,

1998, that was based on information provided by Johnson and investigators’ speculation about what

happened at the store. In the broadcast, the second man was shown with a rabbit’s foot key chain

hanging out of his pocket and the key chain was highlighted as an important new clue. The same

day as the broadcast, Lonnie Kemp, a Lake Charles resident, called AMW to report that “she knew

a white male with whom she had talked before who had a rabbit foot key chain and knew the white

male knew Stacie Reeves. She advised the white males [sic] name was Thomas Cisco and she

thought he was living in the New Orleans,_La. area at this time.” R. 428. On the basis of this tip,

the New Orleans office of the FBI was assigned the task of tracking down Respondent.’ |

* The rabbit’s foot key chain was the “clue” that broke the case. It is difficult to imagine evidence

(continued...)

The FBI eventually located Respondent, an emotionally troubled man with a low IQ and a

history of suicide attempts and drug addiction.'° The FBI interviewed him initially on May 12 and

{

9(...continued) .

that could have been more easily impeached considering the curious development of this particuiar critical

detail:

® Johnson (in her second interview) initially attributed the key chain to the first marl whom

she saw (i.e. not Respondent) and described it as “somewhat round in shape, [with] the ward

‘MARLBORO’ .. . visible written in blue color, an animal figure, not further able to be

described, . . . visible in a brown or tan color; and the background of the key chain... . a

white color.” R. 2281.

® Prior to being placed under hypnosis, Johnson advised the hypnotist that one of the men

had a key chain with “[l]ike a Marlboro monkey . . . a little symbol of Marlboro . . . you

know, it was in blue-writin’ and they had the little animal on top of it or whatever it was.”

Transcript of Virginia Johnson’ s pre-hypnotic and hypnotic interview. (Appellate Appendix

(“AA”) at 34-35).

® While under hypnosis, Johnson attributed the key chain to the second, rather than first,

man she saw and described it as “‘a round key chain. You can see the Marlboro is in blue

writin’ and they have like a symbol of the cigarette pack, I guess, like an animal or somethin.

And I noticed they have a rabbit’s head on it, on the key chain.” Id. (AA at 71).

= There was no mention of a rabbit’s foot key chain as a clue to the KK’s Corner murders

until it was shown as an important new fact on America’s Most Wanted in January 1998.

Despite the ease of impeaching this evidence, Respondent's conflicted trial attorney preser.ted none of these

facts to the jury. At oral argument before the Louisiana Supreme Court, in response to questions by Justices

Knoll and Weimer, Assistant District Attorney David Kimball stated that he could not explain how the key

chain had “morphed” into a rabbit’s foot key chain.

‘© Uncontroverted evidence presented at trial established that Respondent has severe intellectual

limitations and may be mentally retarded. Dr. Ted Friedberg testified that Respondent scored 70-75 on his

IQ tests, R. 4086 — scores that are within the outer border of mild mental retardation. Dr. Sarah Deland

testified that Respondent is in the range between borderline intellectual functioning and mild mental

retardation and may be at the high end of mild mental retardation. R. 4288-89. Dr. Mark Zimmerman

testified that, based on tests he administered, Respondent functions roughly between the bottom first and

bottom third percentile in the population. R. 4265.

It is well recognized that “those with mental limitationsare at special risk of false confessions.” Paul

G. Cassell, The Guilty and the “Innocent”: An Examination of Alleged Cases of Wrongful Conviction from

False Confessions, 22 Harv. J.L. & Pub. Pol'y 523, 583 (1999). See, ¢.g. GISLI GUDJONSSON, THE

PSYCHOLOGY OF INTERROGATIONS, CONFESSIONS AND TESTIMONY 144 (1992); Welsh S. White, False

Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 Harv. C.R.-C.L. L.

Rev. 105, 131 (1997). See also Atkins v. Virginia, 536 U.S. 304, 320 (2003) (noting that individuals with

mental retardation are particularly vulnerable to giving false confessions).

Although. the ‘intended defense in this matter was that Respondent’s numerous confessions were

false, the trial court’s rulings effectively prevented Respondent from presenting any evidence to support this

theory of the case. The Louisiana Supreme Court did not reach the several claims arising from the trial

(continued...)

aa

13, 1998. During these unrecorded interviews, Respondent admitted to knowing one of the victims,

Stacie Reeves, but denied involvement in the crime, although he also stated that he had a significant

drug problem at that time and it was possible that he was involved but did not remember because of

the drugs. R. 3470. Respondent said he had spent the July 4" weekend with friends in the New

Orleans area. R. 3537.

The FBI teint Respondent in New Orleans on August 26, 1998. After more than

five hours of unrecorded questioning, Respondent provided a written inculpatory statement on the

basis of which he was transported to Lake Charles in an FBI airplane and, some time later, formally

arrested and charged with the KK’s Corner murders. During the course of the investigation,

Respondent made numerous, inconsistent statements inculpating himself and a variety of others in

the snail — all of which were essentially discredited by subsequent pclice investigation — as well

as several exculpatory statements.'' Dep. DeLouche personally conducted many of the interrogations |

and supervised virtually all of the remaining interrogations. ;

No forensic evidence links Respondent to the crime. Instead, ‘he convictions and death

sentences in this matter rest solely on Respondent’s numerous inconsistent statements and Virginia

Johnson’s post-hypnotic identification of him as the second man whom she could never describe.”

‘8(...continued)

court’s rulings in this regard.

'! The sheer volume of statements taken in this case is extraordinary. The transcribed audio- and

videotaped statements alone amount to approximately 400 pages of the record. See R.554-679, 681-763, 766-

826, 828-58, 860-900, 910-60, 962-64. In addition, Respondent provided several unrecorded statements and

wrote a substantial number of statements and letters. See R. 188, 190-94, 965-58, 901-07, 961, 970-88, 990-

1007, 2020-25.

'2 Johnson identified Respondent as the second man shortly after his arrest, i.e. more than a year after

the crime. Putting aside the question of whether a post-hypnotic identification that lacks independent indicia

of reliability constituted admissible evidence, the physical lineup at which Johnson identified Respondent

was conducted in the absence of counsel, despite the fact that Respondent’s right to counsel had attached and,

indeed, counsel had finally been appointed that very morning, several hours before the lineup was conducted.

(continued...)

B. The Trial Court Appointed the Lawyer Who Represented DeLouche in Contentious

Divorce and Custody Matters as Respondent’s Lead Attorney in This C apital Case

Respondent was formally arrested on pretextual robbery charges at 2:40 a.m. on August 27,

1998, and booked into jail in another parish.'* Over the next several days, he gave a variety of

inculpatory and exculpatory statements.

On September 1, 1998, Respondent was given his initial appearance in court and Evelyn |

Oubre was appointed to represent him. At the time she was appointed and throughout much, if not

all, of the proceedings below, Oubre also rapreenined DeLouche in a variety of matters,'* including

divorce proceedings and/or nately disputes that involved allegations brought by his ex-wife that

were so scandalous that the proceedings were sealed — and remain so today."

- '%& continued) -

The lineup was not videotaped or otherwise recorded. Respondent’s conflicted trial counsel did not move

to suppress the identification.

'5 DeLouche’s Supplemental! Police Report, and his suppression hearing and trial testimony, clearly

establish that Respondent was arrested on robbery charges, instead of first degree murder charges (and

booked into the DeQuincy, rather than Calcasieu, Parish jail), so that the media would not be alerted to the

fact that someone had been arrested for the KK’s Corner murders. See R. 461-62, 3667; R. (Vol. 25), at 15,

37. It was not until August 28, 1998, that an arrest warrant was issued charging Respondent with the KK’s

Corner murders and he was formally arrested on those charges. R. 468-69. He was brought to the Calcasieu

Parish Correctional Center and held in isolation on suicide watch for several days without being taken before

a judge for the appointment of counsel — even though he had expressly requested counsel during an’

interrogation conducted by DeLouche on August 28, 1998.

'* On May 12, 1999, at his initial deposition in a civil suit brought by the victims’ families against,

inter alia, the Calcasieu Parish Sheriff's Office, DeLouche identified Evelyn Oubre as his private attorney,

although she did not make an appearance on his behalf at that proceeding. See Deposition of Lucky

DeLouche, dated May 12, 1999, at p. 8 (AA at 183). This civil suit was pending at the time of Respondent's

trial.

'S Undersigned counsel has obtained documents that she believes pertain to the allegations brought

against DeLouche in these sealed proceedings. Because of the sensitive nature of this material, she filed

some of these documents under seal in the Louisiana Supreme Court. In the event this Court needs further

information relative to the charges against DeLouche, undersigned counsel will submit such materials to the

Court for its review.

10

c. Respondent Did Not Knowingly and Intelligently Waive His Right to Conflict-Free

Counsel Because He Was ‘Never Informed of the True Nature of Oubre’s Conflict |

and Its Potential for Crippling His Defense, and Was Never Advised that the Trial

Court Would Appoint Him Another Attorney Should He Object to Oubre’s

Simultaneous Representation of His Chief Accuser

By letter dated September 16, 1998, Oubre informed Respondent that she represented Dep.

~ DeLouche and his wife in separate “family law matters.” She advised that she did not think that she

had a conflict of interest and left it to Respondent to determine whether there was a conflict. The

body of this letter is quoted in full below:

\

As you are aware, I have been appointed as lead counsel in your criminal matter.

Before we discuss any facts concerning your case, I want you to be aware that I am

the attorney for the lead investigator for the Violent Crimes Task Force, Mr. Lucky

DeLouche. I represent Mr. DeLouche in a family law matter. I also represent Mr.

DeLouche’s wife in a separate family law matter. If you believe that there is a ;

conflict in [sic] interest in my representing you in your proceedings, and

representing Mr. DeLouche and his wife in their separate family law matters, 2

then I will have you brought into court so that you can explain your concerns

to the judge, before we proceed. I do not believe my representation is a conflict

of interest according to the Code of Ethics, and if] continue to represent you, I will

do my very best to protect your rights and all-matters concerning your case will

remain confidential, but the decision is yours.

Please circle and sign the below appropriate paragraph that better expresses your

wishes:

I, Thomas Cisco, Jr., understand that I have a nght to request that

Evelyn M. Oubre, be removed as my lawyer. I further understand,

that if I choose to request her removal, I must do so immediately. I

can not allow Evelyn M. Oubre to represent me for awhile and then

decide that I no longer want her to represent me. Knowing that

Evelyn M. Oubre represents Donald DeLouche and his wife in

separate family law matters, and knowing that Evelyn M. Oubre will

have contact with Lucky DeLouche and his wife concerning their

matters, 1 WISH THAT EVELYN M..OUBRE REMAIN AS MY

_ ATTORNEY.

I, Thomas Cisco, Jr., wish to ask the court to remove Evelyn M.

Oubre as my attorney. :

AA at 177 (copy of “waiver of conflict” letter)(italics original; bold supplied) (quoted in full in State

v. Cisco, 861 So.2d 118, 125, n.14 (La. 2003) (Appendix A to State of Louisiana’s Petition for Writ

of Certiorari [hereinafter “Louisiana’s Appendix A”’], at 12a-13a, n.14)."°

Respondent circled and signed the portion of the letter indicating that he wanted Oubre to

remain as his attorney. See AA at 177.

On September 24, 1998, at a hearing before Hon. Fred R. Godwin, to consider the State’s

motion to obtain hair and fluid samples from Respondent, the court briefly addressed the conflict

issue brought to his attention by Oubre."’ —_— advised the trial court that she represented

DeLouche and his wife, and Dep. Vic Salvador in “family court matters”; that she had explained

this to Respondent, DeLouche and Salvador; that she had prepared a written document for

Respondent to sign; and that he had signed it. Supp. R. (lodged 10/7/02) (Appendix D), at 18. She

further advised that “I have gone back over it with him again this morning, explained to him the

potential conflict, although I do not see one, and according to the Code of Professional Conduct,

I do not nie one, I want to - absolutely cautious and I want to do what Mr. Cisco requests of me.

And it is my understanding as of still this morning Mr. Cisco desires that I remain as his lead

meni Id. at 18-19 (emphasis supplied).

At the waiver hearing, neither Respondent, nor Judge Godwin, was informed of the true

character of the conflict as Oubre did not disclose the nature of her representation of DeLouche in

'° In this letter, Oubre did not inform Respondent of the nature of her representation of DeLouche

and, indeed, could not since the proceedings in which she represented DeLouche were under seal. Oubre

did not inform Respondent that the court would be required to appoint another attorney to represent him if

Oubre were removed as counsel. Oubre incorrectly advised him that he had to make this decision

immediately and that she could not be removed as counsel once she had commenced representing him.

This letter was written after Oubre had already met with Respondent for approximate 1.25 hours on

September 15, 1998, and presumably discussed his case. R. 1808. Although the Court may question why

Oubre would want to persist in representing Respondent if she truly had a conflict of interest, she had a

considerable financial interest in this open. Upon information and belief, Oubre has been paid

upwards of $100,000 i in this case.

7 A transcript of the entire colloquy is attached as Appendix D hereto.

12

the sealed “family law matter.” Moreover, the trial court never explained to Respondent what was

meant by the phrase “conflict of interest” and its discussion of the possible effects of a conflict in

this matter did little to elucidate its meaning:

Let me just point out. I can’t sit here and think of a lot of different ways that some

conflict can come up, but let me just give you one that comes to mind, and let you be

sure you see what we’re talking about here. For example, let’s suppose that Mr.

DeLouche ends up being a witness for the State against you, givirrg testimony that’s

harmful to your case. Ms. Oubre is obligated to cross examine him and try to bring

out whatever she can bring out that’s helpful to your case.

[The prosecutor interjects that DeLouche will be a witness for the-State. ]

Well, okay, it — well, you’ve heard that said now, that he will be a witness. All right.

There is the — there is at least the potential, or the concern, for example, that you may

at some point have some feeling that Ms. Oubre, because she represents Mr.

DeLouche personally, isn’t being as aggressive as you think she ought to be, or isn’t

pushing him as much as you think she ought — I don’t know, I’m just — that’s just one

little way it could come up that would — that’s what we call conflict. [Mr. Cisco

states, “Right.”’] :

_ As to whether — as to whether there’s any concern that her duty to you to be — fully

assert all your rights is going tobe held back in any way because of any relationship

or duty — client relationship she has with DeLouche. And the same goes for Mr.

Salvador. And I can’t sit here and forecast all the different little ways that something

may come up there, but that’s what we’re talking about; is something like that. This

letter that’s written here uses the term conflict and everything, and I’m trying to flesh

it out for you, for you to picture — so, do you see all of that?

Id. at 20-22.

This was the sum total of the trial court’s explanation of the conflict. The court’s words

indicated that a conflict would do no more than possibly make Respondent feel slightly unsatisfied

with his attorney’s cross-examination of DeLouche and that a conflict of interest might present

“different little ways” that Respondent’s representation could be affected. The trial court did not

explain that a conflict of interest meant that defense counsel may not be able to perform her job

competently because she had opposing obligations to another client. The judge did not explain that

Oubre owed DeLouche a duty to honor his client confidences and thus could not séek to cross-

13

examine him on any issues that she had learned from DeLouche during her representation of him,

absent a waiver of DeLouche’s attorney-client privilege.'* At no time during the waiver hearing did

the trial court inform Respondent that if Oubre were removed as his attorney, the court would

appoint him new counsel. ;

Respondent’s responses at the hearing, moreover, provide little basis to conclude that he

knowingly and intelligently waived snything During the waiver colloquy, Respondent spoke a total

of forty-three words. Sixteen of these were the phrase “Yes, sir” repeated eight times. During the

portion of the colloquy addressing the possible effects of the undefined conflict, Respondent uttered

only one word containing more than one syllable — when he stated “Yes, sir, I understand.” Id. at

22. After indicating monosyllabically that he-understood the conflict and had no problem with it,

Respondent answered the court’s questions about his education and former empioyment, explaining, .

“I quit [school] in the 11" grade,” and “I’ve done anywhere from roofing to building house [sic] and

ceramic tile.” Id. at 23. On the basis of this information, the trial court concluded that ti

certainly sound sufficiently articulate and able to understand — you understand everything I’ve said

here.” Id. To which Respondent compliantly responded: “Yes, sir.” Id. Noting that “I’m satisfied

that the matter can proceed and that whatever conflict that might be can be and has been waived, and

I’m going to file the letter in the record,” id., the trial court moved on to address other matters.”°

At the time the trial court accepted Respondent’s waiver, it was unaware of the serious nature

. '’ This would include information that an unconflicted attorney could have discovered from other

sources. ,

'° The remaining words spoken by Respondent at this hearing were: “Right,” id. at 21; and “Yes, I.

do,” “Yes, Iam,” and “No.” Id, at 22.

20 Lest it be forgotten, Respondent tests in the range of mild mental retardation or borderline

intelligence, see supra at 8-9, n.10—a factor that clearly impacts any assessment of the knowing or intelligent

nature of his waivers of constitutional rights.

14

of the conflict. It was soon provided important information bearing on this issue, however. On or

about October 9, 1998, Thomas Lorenzi, a local attorney who had been following the case, wrote to

Judge Godwin to express his concerns about Oubre’s continued representation of Respondent in light

\

of her significant conflict of interest. In the letter, Lorenzi advised the court that Oubre’s conflict

was far more egregious than it may have appeared at the hearing conducted two weeks earlier:

From what I understand [about the September 24 hearing], Evelyn obtained waivers

from all three clients and you questioned Mr. Cisco to satisfy yourself that he wanted

Evelyn to represent him. I am compelled to write because there is one thing I feel

sure you did not know and there is a second that you may not have known.

Delouche’s domestic file is under seal. I question how Evelyn could have explained

potential conflicts to Cisco unless she had obtained an order unsealing the record,

_ or relieving her from that obligation. The information among the bar, or at least the

defense bar, is that the pleadings were placed under seal because there were

allegations of criminality . . . made against Delouche. An investigation was

conducted and I know that there was talk at one time that Delouche was going to

leave the Sheriff's office and move.

Letter, dated October 9, 1998, from Thomas Lorenzi to Hon. Fred Godwin, Jr. (attached in redacted

form as AA at 186-87) (emphasis supplied). See also Cisco, 861 So.2d at 120-21 (La.. 2003)

(Louisiana’s Appendix A, at 3a-4a).”' Lorenzi’s letter further explained that, under Wheat v. United

States, 468 U.S. 153 (1988), and progeny, the court had the authority to disqualify Oubre despite

“é

Respondent’s supposed waiver of conflict-free counsel because a defendant’s “choice of counsel

~

must yield when there is a serious potential conflict even when the defendant expressly desires to

waive the conflict.” AA at 187. Judge Godwin later reported to Lorenzi that he had passed a copy

of his letter on to the judge to whom the case had been allotted, Hon. Patricia Minaldi. AA at 185

(Affidavit of Thomas L. Lorenzi, q 5).

On October 13, 1998, at the time of Respondent’s arraignment, Oubre asked the court what

*! The copy of the letter included in the appendix to the Brief on Appeal was redacted to prevent

disclosure of the nature of the alleged crimina! charges. Respondent filed an unredacted copy of the letter

under seal in the Louisiana Supreme Court.

15

it proposed “to do in reference to the conflict that Mr. LaVern, second chair; has?” Supp. R. (lodged

-

7/12/02), at 10. In response, the court stated: ,

Id. at 10-11 (bold emphasis original, italics supplied). The court indicated that it would conduct a

I spoke with Judge Godwin about the hearing that he had, both on the conflict that

you brought to his attention, and the conflict that, to my knowledge, was brought to

his attention by Mr. LaVern. He was of the opinion that his inquiry into both

conflicts, actually, was brief. I think under U.S. vs. Wheat, it may be necessary, just

to protect the record, and I have no doubts, Ms. Oubre, that if there were even the

specter of a potential conflict that you thought was genuine, you would have brought

that to the attention of the Court and asked to be disqualified yourself. I don’t have

any doubt that that doesn’t exist, but J think just to protect the record, and for

possibilities of post-conviction relief, it may be a better idea for me, at some point,

to go into a more lengthy discourse with Mr. Cisco about what he understands about

the conflict and put more of that on the record. I think that may be required under

Wheat, and I want to make sure that that is done adequately, especially with Mr.

LaVern, who I think the potential is evident, and yours, I don’t think is.

hearing on the matter later in the week. Id. at 13. No such hearing ever took place.”

divided loyalties. These are reflected in documents disclosed by the State during discovery in which

Respondent expressed his belief that Oubre and DeLouche were together working against him. In

Some time later, Respondent apparently began to develop suspicions about his attorney’s

a document dated November 29, 1998, he wrote:

R. 982.

The attorney that I was apointed [sic] represented Lucky D. in another matter of some

kind. Her name is Evelyn Oubre. I didn’t like the idea of her representing me &

Lucky D. at the same time. Every time Lucky sees me he tells me to tell my attorney

the truth. Well at the time that Evelyn Oubre was my lawyer, he did & that was every

time he came to CCC & saw me that he would say that. To be honest I think Lucky

D. & Evelyn Oubre use [sic] to talk about my case to each other & I think he was

paying her off to hang me with this crime. I don’t know that for sure but I bet he

was. At least that [sic] what I think & believe.

22 The Louisiana Supreme Court concluded that the Wheat hearing that Judge Minaldi believed was

necessary never actually occurred, given the absence of any evidence ofit in the appellate record and Oubre’s

meticulous time records. See Cisco, 861 So.2d 118, 131 and 131 n.19 (La. 2003) (Louisiana’s Appendix A,

at 26a-27a and 27a, n.19.

16

}

‘

In another document written the same day, he reported:

These are my openions [sic] -> Evelyn Oubre is or was being paid off by Lucky D.

of the Task Force here in Lake Charles La. for info about my case. Why do I think

this. Because I know that Evelyn Oubre is close friends with Lucky D. She told me

so herself & plus she represents Lucky D. in a family matter in court. When I was

in intake here in Calcasieu Correctional Center Lucky would always ask me when he

saw me if I was telling Evelyn the truth & other times he would tell me to tell her the

truth. ;

ee a

R. 967.7

These writings were eventually brought to the attention of the trial court at a hearing

AI Sr RNR RA TREN ST eee

conducted on November 8, 1999, to address Respondent’s motion to suppress his various statements.

At the beginning of the hearing, the following exchange took place:

Ms. Oubre: _[P]rior to going to the Motion to Suppress, I’d like the defendant

placed under oath and the Court question him as to whether or not he

wishes for me to continue to represent him. Once the discovery had

been provided to me by the State, there was information contained

therein that Mr. Cisco thought that Mr. “Lucky” DeLouche and I were

in collusion together, and I want that solved once and for all.

The Court: | Okay. Now, Ms. Oubre, if I remember correctly, this came up in the

very beginning, the very inception of this case, and I questioned Mr.

Cisco about it at that time, and he assured me that he wanted you to

remain as his attorney. Are you telling me that there’s something that

has happened since that has changed that?

eae Ms. Oubre: _ I have seen letters that he has written that contains that in it.

The Court: That Mr. Cisco has written? :

*> These writings indicate, moreover, that DeLouche continued to have contact with Respondent

following his August 31, 1998, recantation and the appointment of his albeit conflicted attorney — a fact

corroborated by DeLouche’s Supplemental Police Report. See R. 1262-63. Oubre failed to bring this to the

attention of the court in the suppression hearing, even though this fact was clearly relevant to Respondent’s

contention that his inculpatory statements were obtained in violation of his constitutional rights. Oubre,

moreover, failed to cross-examine Dep. DeLouche about his continued contact with the defendant, éven

though DeLouche testified, at trial, that neither he nor any Task Force investigator had any contact with

Respondent during the period following the appointment of counsel on September 1, 1998, until January 20,

1999, when Respondent requested that DeLouche come to see him. Of course, the fact that Oubre advised

the trial court that Respondent had written these letters complaining about her suspected collusion with

Lucky DeLouche means not only that she had these documents in her possession, but that she had read them.

17

= | | | |

Ms. Oubre: Yes, ma’am.

The Court: All right. Mr. Cisco, approach the microphone right there between

our attorneys, right there. You heard what Ms. Oubre just had to say?

Defendant: Yes, ma’am. -

The Court: | Do you have any doubts about whether you want her to continue to

represent you? i

Defendant: No.

The Court: | You want her to continue to represent you?

Defendant: Yes, ma’am, I do.

The Court: Allright. Thank you.

Supp. R. (lodged 10/8/01), at 4-5. As noted, despite the court’s apparent belief that it had previously

questioned Respondent regarding Oubre’s conflict of interest, the record does not reflect that any

such hearing was conducted. |

D. -Oubre’s Representation of DeLouche Significantly Impaired Her Ability to Cross-

Examine This Critical State Witness on Behalf of Respondent

In the course of representing Respondent, Oubre had occasion to.cross-examine her other

client, DeLouche, on three occasions — at hearings conducted on November 8 and November 18,

1999, to address Respondent’s motion to suppress his numerous statements (which was denied in

its entirety), and at trial.”* During these examinations, Oubre did virtually nothing to attack either

DeLouche’s credibility or his professional competence, even though such an approach was essential

24 There would have been at least a fourth occasion had counsel taken the rather obvious step of

moving to suppress Virginia Johnson’s unreliable identification of Respondent as the second man whom she

could never describe — even after being hypnotized. In addition to other infirmities in the identification, a

solid basis for excluding this identification was the fact that DeLouche went forward with the physical line-

up after the Respondent’s right to counsel had attached and he had been appointed Oubre as his lawyer, see

United States v. Wade, 388 U.S. 218 (1967), even though Respondent would not sign the waiver of rights

form that DeLouche presented to him. As this motion was never filed, Oubre did not cross-examine

DeLouche on this subject and Johnson’s out-of-court identification of Respondent was featured prominently

at trial.

18

to Respondent’s defense in this capital case.

Not only did Oubre make no attempt to impeach DeLouche with any information that

unconflicted counsel would have explored with respect to improprieties that were documented in the

sealed family law matters in which she represented DeLouche,” but deficiencies in her performance

that stem from her conflict of interest cast a far wider net. For example, Oubre failed to question

DeLouche about matters reflected in the supplemental police report he authored that were relevant

to Respondent’s argument that his inculpatory statements were involuntary and unreliable — and that

demonstrated that DeLouche was perjuring himself in Respondent’s case.”* Likewise, Oubre never

attempted to attack the thoroughness of the investigation that DeLouche had supervised, even though

: a significant amount of information undermines the theory of the casé presented at trial.?’

*> As the Lorenzi letter to Judge Godwin makes clear, it was well known among the defense bar in

Lake Charles that DeLouche’s family law record was sealed because of allegations of criminality made

against him. Any reasonably competent attorney, accordingly, would have moved to unseal those records

and would otherwise have undertaken an investigation of this critical state witness.

°° For instance, Oubre did not question DeLouche about whether he and other investigators had

honored Respondent’s invocation of his right to counsel on August 27, 1998, even though the Supplemental

Report authored by DeLouche establishes that immediately after Respondent invoked this right, DeLouche

asked Respondent if he would nonetheless accompany investigators to the hotel where he had stayed when

working in Lake Charles in 1996 and Respondent agreed to do so. R. 464. She did not question DeLouche

about the fact that DeLouche and other investigators thereafter brought Respondent to the Confinement

Center so that they could ask him questions if they needed to, R. 468, even though DeLouche testified that

he and Task Force members had no contact with Respondent after he had invoked his right to counsel. R.

(Vol. 25), at 57. She did not question DeLouche about-+he conditions under which Respondent was held in

isolation, apparently at DeLouche’s request, although solitary confinement clearly exerted a coercive effect

on Respondent’s weak psyche. R. 471. Similarly, Oubre did not question DeLouche about his apparent

unsolicited contacts with Respondent at the prison after Oubre had been appointed to represent Respondent,

which were reflected in the very writings that Oubre had brought to the trial court’s attention at the beginning

of the November 8 hearing which complained that DeLouche was constantly telling him to tell Oubre the

truth. R. 967, 982.

*” Oubre, for instance, did not challenge the reasonableness of the Task Force’s conclusion that

Virginia Johnson was the last person in the store and that the crime occurred immediately after she left, even

though the statements of several witnesses described in DeLouche’s Report and the owner’s testimony at trial

indicate that the store closed in normal fashion and that the employees were interrupted by their assailants

while they were finishing up their tasks for the night. Oubre failed to bring out the fact that the Task Force

had not cleared numerous other suspects with no known relationship to Respondent and did not attempt to .

(continued...)

19

The patent deficiencies in Oubre’s performance demonstrate that an actual conflict arose

when Respondent’s lead attorney was forced to cross-examine her other client. As discussed below,

the State of Louisiana has not presented any compelling basis for this Court to review the lower

_

court’s analysis of the issue or its resolution of the case.

IV.

REASONS FOR DENYING THE STATE’S PETITION

The facts of this case would provide suitable material for anyone interested in penning a

screenplay about provincial corruption, investigatory bungling and wrongful convictions. As

discussed below, however, this case presents no compelling basis for review by this Court. The

State’s petition for writ of certiorari should accordingly be denied.

A. This Court Lacks Jurisdiction Because the Louisiana Supreme Court’s Extensive

Reliance on Louisiana Law in Grenting Relief Demonstrates that Its Decision

Rests on an Independent and Adequate State Ground ~-

The State of Louisiana has invoked this Court’s jurisdiction.under 28 U.S.C.A. § 1257 on

the ground that the Louisiana Supreme Court reversed Respondent’s convictions and death sentences

on the basis of the Sixth Amendment to the United States Supreme Court.”

27(__.continued)

elicit from DeLouche that the Task Force was obviously desperate to solve the crime by the time Respondent

was arrested. She failed to bring out the conflicts of interests inherent in the Task Force investigation,

including the fact that DeLouche and other members of the Sheriff's Office were the individuals who

personally investigated Richard McElveen, the son of their boss, and ruled him out as a suspect. Likewise,

she did not bring out that the Sheriff and his office had been civilly sued by the families of the KK’s Corner

victims and stood to gain if Respondent were found guilty of the crime, since fault could then be apportioned

to him. .

8 The State of Louisiana’s jurisdictional statement is deficient. It fails to show “the date the

judgment or order sought to be reviewed was entered” or “the date of any order respecting rehearing,” as

required by this Court’s rules. Sup.Ct. Rule 14(e). As the Louisiana Supreme Court denied the State’s

timely filed application for rehearing on January 16, 2004, however, the State’s petition before this Court

is not barred as untimely.

The State of Louisiana has similarly failed to comply with this Court’s rules elsewhere in its petition.

The petition, for example, does not contain a “list of all parties to the proceeding in the court whose judgment

is sought to be reviewed, as required by Rule 14(b); nor does it provide the “constitutional provisions . . .

(continued...)

20

The lower court decision, however, rests on several Louisiana state court opinions that relied

on both the Sixth Amendment and the Louisiana state constitutional corollary.” The latter provides

in pertinent part:

At each stage of the proceedings, every person is entitled to assistance of counsel of |

his choice, or appointed by the court if he is indigent and charged with an offense

punishable by imprisonment. THe legislature shall provide for a uniform system for

sechring and compensating qualified.counsel for indigents.

La. Const. art. I, § 13 (1974).

The Louisiana Supreme Court’s decision, moreover, relied on state law defining an attorney’s

professional obligations to her clients:

afore

This court has consistently held that a defense attorney required to cross-

examine a current or former client on behalf of a current defendant suffers from an

actual conflict. See, e.g., State v. Carmouche, 508 So.2d at 804; Franklin, 400 So.2d

at 620 (“We must agree with the defendant’s attorney, and with the trial judge, that

an actual conflict arose when the state called [counsel’s former client] to the stand.

[Counsel] was put in the unenviable position of trying zealously to represent the ;

defendant at trial while simultaneously trying to protect the confidences of a former . i

client who was testifying for the state against the defendant.”); see also Dane S.

Ciolino, ed., Louisiana Rules of Professional Conduct, Rule 1.7 comment 3 (L.S.B.A.

*8(__ continued)

involved in the case, set out verbatim with appropriate citation,” as required by Rule 14(f), or even cite to

the Fourteenth Amendment to the United States Constitution.

°° The Louisiana Supreme Court’s decision below relied inter alia on State v. Franklin, 400 So.2d

616 (La. 1981), State v. Kirkpatrick, 443 So.2d 546 (La. 1983); State v. Kahey, 436 So.2d 475 (La. 1983);

and State v. Carmouche, 508 So.2d 792 (La. 1987)(on rehearing). See Cisco, 861 So.2d 118, 129-130 (La.

2003)(Louisiana’s Appendix A, at 22a-23a). The conflict analysis in all these state decisions rested on both

the federal and state constitutions. Indeed, while the appeal in Carmouche was pending, the Louisiana

Supreme Court had sua sponte remanded the case to the trial court to determine whether appellant’s state

constitutional right to counsel had been violated when defense counsel “represented both the defendant and

an important prosecution witness who testified that the defendant confessed his guilt of the murder in this

case while the two were incarcerated in the same cell block.” State v. Carmouche, 480 So.2d 728, 729 (La.

1985).

°° This language is certainly different from the right to counsel articulated in the federal constitution:

In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his

defence. .

U.S. Const. amend. VI.

2001) (“As a general proposition, loyalty to a client prohibits undertaking

representation directly adverse to that client without that client’s consent.”’).

See Cisco, 861 So.2d at 130 (Louisiana’s Appendix A, at 24a).

The lower court decision, accordingly, rests on an independent and adequate state ground,

and jurisdiction accordingly does not lie in this Court. See Michigan v. Long, 463 U.S. 1032 (1983).

B. The Louisiana Supreme Court Correctly Found that Oubre’s Joint Sinrcseninion

of Respondent and the Key Witness Against Him At Trial Created an Actual

Conflict of Interest

As it has throughout the appeal of this case, the State of Louisiana insists that Oubre’s

concurrent representation of Respondent and his principal accuser did not create even a hint of a

conflict. The State’s position is patently absurd. “Unlike the joint representation of codefendants,

where there may be a benefit to presenting a united defense, in the case of dual representation of the

defendant and an adverse witness, there is no benefit to common representation. To the contrary,

_ the potential for less zealous representation of the defendant is obvious.” State v. Watson, 620

N.W.2d 233, 239 (Iowa 2000). Cf. Holloway v. Arkansas, 435 U.S. 475, 482-83 (noting that in some

cases, benefits may accrue from joint representation of co-defendants).

Indeed, this Court has recognized that an actual conflict of interest arises when a lawyer is

forced to cross-examine one client on behalf of another. In Wheat v. United States, 486 U.S. 153

(1988), the Court held that the district court has authority to disqualify defense counsel, despite the

defendant’s waiver, when the likelihood of an actual conflict of interest is sufficiently high. The

Court found that just such an unwaivable conflict would arise if a sini or former client testifies

on behalf of the government. As the Court observed “{t]he Government might readily have tied

certain deliveries of marijuana by Bravo to petitioner, necessitating vigorous cross-examination of

Bravo by petitioner's counsel. [Counsel], because of his prior representation of Bravo, would have

a ae

been unable ethically to provide that cross-examination.” Id. at 164.°' Indeed, the Louisiana

Supreme Court found this Court’s reasoning in Wheat entirely applicable to the facts of this Case.

As the lower court observed:

In Wheat, much like in the instant case, the defendant sought representation

by an attorney already representing potential prosecution witnesses. Id., 486 U.S. at

155-56, 108 §. Cf. at 1695. Unlike in the instant case, however, the district court in

Wheat refused to allow potentially conflicted counsel to enroll. Id. 486U.S. at 157,

| 108 S. Ct. 1696. The Wheat court affirmed, rejecting arguments by the defendant

that he should be permitted to waive any conflict. Id., 486 U.S. at 164, 108 S. Ct. at

1700.

al acaielet sho rae =

Cisco, 681 So.2d at 132 n.20 (Louisiana’s Appendix A at 29a, n.20).

Despite the soundness of this view, the State asserts, in conclusory fashion, that Oubre’s

representation of DeLouche was inconsequential and had no bearing on Respondent’s defense on

the grounds that (1 ) Oubre merely represented DeLouche in an innocuous and unrelated family court

proceeding, and (2) DeLouche had absolutely no interest in the outcome of Respondent’s criminal

proceeding, since he was merely a third-party witness whose only interest was “m ensuring that

justice was served.” State’s Brief, at 7. The State’s arguments are disingenuous and misleading.

That Oubre’s representation of DeLouche arose in an unrelated family law matter is legally

irrelevant. “The fact that the simultaneous representation is on a civil matter makes no difference in

the conflict of interest inquiry.” Rosenwald v. United States, 898 F.2d 585, 588 (7" Cir. 1990).

Rather, an attorney in Louisiana owes a duty of loyalty to her client regardless of the nature of the

‘ proceeding. See Rule 1.7 of the Louisiana Rules of Professional Conduct.” Thus,

*! Given the glaring nature of the conflict, the State has no one to blame but itself for the reversal

of Respondent’s convictions and death sentences, as it was well aware at the time of Oubre’s appointment

and throughout the proceedings that she also represented its key witness. Clearly, the State could (and

should) have moved to disqualify Oubre prior to trial under Wheat.

2 Indeed, lawyers practicing outside the State of Louisiana would face comparable professional

strictures. See. e.g., Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 586-87 (1990)

(continued...)

23

[t]he problem that arises when one attorney represents both the defendant and the

prosecution witness is that the attorney may have privileged information obtained

from the witness that is relevant to cross-examination, but which he refuses to use for

fear of breaching his ethical obligation to maintain the confidences of his client. . .

“The more difficult problem which may arise is the danger that counsel may

overcompensate and fail to cross-examine fully for fear of misusing his confidential

information.”

Ross_v. Heyne, 638 F.2d 979, 983 (7" Cir. 1980) (quoting United States V. Jeffers, 520 F.2d 1256,

1265 (7 Cir. 1975). |

Moreover, it is clear that the interests of Respondent and DeLouche eos not have been

more divergent. DeLouche spearheaded both the investigation of the KK’s murder generally and the

investigation that led to Respondent’s arrest and prosecution. He was responsible for taking the bulk

of Respondent’s inculpatory statements — evidence that was the essential core of this prosecution.”

In light of these facts, it is difficult to fathom how DeLouche would not have had a substantial

32(__ continued)

(Kennedy, J., dissenting) (noting that “the lawyer’s duty of loyalty long has precluded the representation of

conflicting interests. See Williams v. Reed, 29 F. Cas. 1386, 1390 (No. 17,733) (CC Me. 1824) (Story, J.);

H. Drinker, Legal Ethics 103 (1953) (describing the ancient history of the prohibition on simultaneous

representation). A lawyer, at least absent knowing waiver by the parties, could not represent both the

respondents and the senior laidoff workers as the Union has done in this case. Cf, ABA Model Rules of

Professional Conduct 1.7(b) (1984); ABA Model Code of Professional Responsibility DR 5-105(C)

(1980).”).

3 See, e.g., Castillo v. Estelle, 504 F.2d 1243, 1245 (1974) (finding that counsel suffered a disabling

conflict when he simultaneously represented a state witness in unrelated civil proceedings, a situation the

court found to be “so inherently conducive to divided loyalties as to amount to a denial of the right to

effective representation essential to a fair trial.”); Commonwealth v. Hodge, 434 N.E.2d 1246, 1248 (Mass.

1982)(conflict of interest arose where counsel’s law partner represented police officer witness in unrelated

libel suit; court noted that counsel “was operating under a genuine conflict of interest from the time it became

clear that Patrick would give nontrivial testimony for the Commonwealth.”); People v. Wandell, 554 N.E.2d

1274 (N.Y. 1990)(“conflict existed by virtue of defense counsel’s representation of the prosecution’s chief

witness” in unrelated civil matter). ;

** Virginia Johnson’s dubious identification of Respondent certainly-could not have served as the

basis for prosecution in the absence of Respondent’s inculpatory statements. All that she saw were two men

in the store, who were doing nothing illegal, at some point prior to closing.

24

interest in the State’s successful prosecution of the case.”

Furthermore, DeLouche had a more personal stake in the outconie of Respondent’s

prosecution. In July 1998, prior to Respondent’s arrest, the victims’ families brought civil suits

against inter alia DeLouche’s employer, the Calcasieu Parish Sheriff's Office. These were

predicated, in part, on the failure of the Sheriff's Office to dispatch a deputy to investigate KK’s

Corner in response to the security company’s request to put out a patrol, a call that was placed

shortly ei 1:00 a.m. on July 6, 1997. See R. 3196. The civil suits were pending at the time of

Respondent’s trial. It was in the interests of the Sheriff's Office both to place the crime as close to

midnight as possible (thereby diminishing the chance that its negligent acts could be found to have

caused the plaintiffs’-injuries) and to convict Respondent, to whom the Sheriff's Office had

attributed fault in its pleadings. See casimeael and Amended Answer filed by Calcasieu Parish

Sheriff and Calcasieu Parish Sheriff Deputy Jerome Lastrapes, in Guidry, et al. v. Kline, et al., 14"

JDC No. 98-3862 (AA at 188-90).*°

> Cf, Zuck v. Alabama, 588 F.2d 436, 439 (5™ Cir. 1979) (finding that conflict of interest arising

from defense counsel’s simultaneous representation of prosecutor in unrelated civil proceedings was more

troubling than one involving “a single prosecution witness[, as h]ere, the conflict could conceivably have

infected the entire trial.”). See also People v. Castro, 657 P.2d 932, 944-45 (Colo. 1983) (finding conflict

of interest where counsel represented district attorney in separate proceedings and observing that, although

coursel o-ved defendant zealous representation without regard to the effects on the district attorney, she also

“owed her undivided loyalty to the district attorney as her client, and her professional responsibility in this

respect implicitly included refraining from taking any legal action that might place him in public disfavor

and further exacerbate the efforts of electors to oust him from office through a recall petition.”); Pruitt v.

State, 514 S.E.2d 639, 648 (Ga. 1999) (“The concurrent representation of a defendant in a capital case and

the district attorney seeking the death penalty against the defendant is an obvious conflict.”), cert. denied,

528 U.S. 1006 (1999). That DeLouche was the principal witness and the individual whose investigation fully

informed the prosecution’s case, rather than the lawyer who staged the trial, makes little difference to the

analysis.

*© Although DeLouche was no longer employed with the Sheriffs Office at the time of trial, he had

been throughout the investigation and, at the time of trial, he (along with forty-one other deputies) was suing

the Sheriff’ s Office in federal court to reinstate his position. See Complaint in Lv.

Individually and in her Official Capacity as Calcasieu Parish Sheriff, U.S.D.C., W.D.La. No. CV00-1654-LC.

(AA at 191-97).

25

Finally, in characterizing Oubre’s representation of DeLouche as the provision of legal

services in a mere family law matter, the State disregards the evidence Respondent produced on

appeal (the substance of which was also provided to the trial court, but not Respondent) establishing

that this was hardly a run-of-the-mill family law matter. Rather, Oubre represented DeLouche in

child custody proceedings that raised such serious allegations-of her client’s criminal wrongdoing

that the records in that case wineeuil from public scrutiny.”’ These allegations were nonetheless

Known to the Calcasieu Parish criminal defense community, see Affidavit of Thomas L. Lorenzi(AA

~ at 184-87), and accordingly would have been an obvious subject of investigation by defense counsel

in Respondent’s case. Due to Oubre’s conflict of interest, however, they remained a subject that

could not be broached.*

In light of the foregoing, it is remarkable that the State of Louisiana is now arguing before

this Court that “this case is certainly not one of an overt and obvious conflict of interest,” State’s

- Brief, at 7, and that the Louisiana Supreme Court’s conclusion that an actual conflict of interest arose

from Oubre’s joint representation of Respondent and a key State witness was an “egregious...

assumption,” State’s Brief, at 11.”

37 Given the obviously contentious nature of the divorce and custody proceedings, it is astounding

that the State has chosen to characterize Oubre’s role in DeLouche’ family court proceedings as “protecting

DeLouche’s] interests ini the smooth and untroubled resolution of his marrage and of child custody .. . .”

State’s Brief, at 7. |

_ 38 The State also urges that Oubre was the individual best suited to judge whether her joint

representation of DeLouche and Respondent created a conflict of interest and that she was “amply protective

of the respondent’s Sixth Amendment rights.” State’s Brief at 14-15, 20. To the contrary, as this Court

observed in Wheat: “Nor is it amiss to observe that the willingness of an attorney to obtain such [conflict]

waivers from [her] clients may bear an inverse relation to the care with which [s]he conveys all the necessary

information to them.” 486 U.S. at 163.

39 The State of Louisiana complains bitterly that the lower court’s “most troublesome error,” is that

it “blatantly disregarded” this Court’s decision in Mickens v. Taylor, 535 U.S. 162 (2002), by failing to

conduct an analysis of whether Oubre’s conflict adversely affected her performance as Respendent’s

attorney. State’s Brief, at 20, 2. Clearly, however, the lower court considered this Court’s decision in

(continued...)

26

Cc. The Louisiana Supreme Court Soundly Concluded that Respondent’s Various

Waivers of the Right to Conflict-Free Counsel Were Not Knowing and Intelligent

Valid waivers of constitutional rights must be both voluntary and “knowing, intelligent acts

done with sufficient awareness of the relevant circumstances and likely consequences.” Brady v.

United States, 397 U.S. 742 (1970). See Iowa v. Tovar, ___ U.S. __, 204 U.S. LEXIS 1837 (2004).

In this case, the Louisiana Supreme Court held that a knowing and intelligent waiver ef the right to

conflict-free counsel requires that a criminal defendant “be told (1) that a conflict of interest exists; *

(2) the consequences to his defense from continuing with conflict-laden counsel; and (3) that he has

a night to obtain other counsel.” Cisco, 861 So.2d at 133 (Louisiana’s Appendix A, at 29a) (citations

omitted). Applying these factors, the lower court found that Respondent did not knowingly and

intelbaenny waive his right to conflict-free counsel because he was given insufficient advice about

the existence and consequences of his attorney’s conflict of interest,’ and he was never informed

39. .continued) : :

Mickens, as the case was addressed by both parties in their briefs. See Brief on Appeal, at 57, 58; State’s

Brief on Appeal, at 16 n.17; Reply Brief on Appeal, at 15, n.20. More importantly, the requirements of

Mickens have been met, as the Louisiana Supreme Court specifically found that Oubre’s performance was

adversely affected because “a defense attorney required to cross-examine a current or former client on behalf

of a current defendant suffers from an actual conflict.” Cisco, 861 So.2d at 130 (Louisiana’s Appendix A,

at 24a). Indeed, this is precisely the same conclusion reached by this Court in Wheat, where it held that the

trial court had properly exercised its authority in preventing such a conflict from contaminating the

proceedings. That Oubre’s performance as Respondent’s counsel was adversely affected by her

representation of his chief accuser is not a matter of mere speculation, but is amply borne out by the record

of Oubre’s cross-examinations of DeLouche. See supra at 18-20.

*° As the court observed:

At no time did counsel shed any light on the nature of her representation of either DeLouche

or his wife other than to say that it was in “separate family law matters.” The district court

made no inquiry of counsel regarding the nature fo the matters in which she represented

DeLouche and his wife. Nor did the district court ever inquire of counsel as to the substance

of the Lorenzi letter. Moreover, although at the arraignment on October 13, 1998, the

district court acknowledged that going “into a lengthy discourse with [the defendant] about

what he understands about the conflict and putting more of that on the record’. . . may be

required under Wheat(,]” the court never engaged in such discourse with the defendant.

Consequently, despite the fact that DeLouche’s significant involvement in the defendant’s

case was readily apparent each time the defendant purportedly waived any conflict of

(continued...)

27

that he had the right to obtain other counsel. Id. at 133-34 (Louisiana’s Appendix A, at 30a-32a).

The State has presented nothing other than bald assertions to counter the Louisiana Supreme

Court’s record-based conclusions. The State contends that Respondent “was fully informed of the

nature of the potential conflict by defense counsel and two trial judges” State’s Brief, at 16, and

competently waived his right to conflict-free counsel, without providing any basis to conclude that

Respondent ne what he was doing at the time he monosyllabically agreed to have Oubre remain

as his attorney. See generally id. at 16-19. The State’s self-serving statements cannot demonstrate

any error in the Louisiana Supreme Court’s analysis of this issue. Moreover, even assuming

arguendo that trial court’s and counsel’s explanation of the nature and effect of the conflict were

sufficient, the State has not pointed to any place in the record where Respondent was advised that

he would be appointed another attorney if Oubre were removed on the basis of her conflict of

ied,

The Louisiana Supreme Court’s finding that Respondent’s various waivers were neither

knowing nor intelligent is fully supported by the record and applicable law, and provides no issue

for this Court’s review.

“°(...continued) ; :

interest counsel Oubre had because of her dual representation of DeLouche and the

defendant, neither Judge Godwin nor Judge Minaldi had taken appropriate steps to put

themselves in a position to inform the defendant of the true nature of his counsel’s conflict

and any effects it could have on counsel’s representation and her defense of his rights.

Cisco, 861 So.2d at 133-34 (Louisiana’s Appendix A, at 31a-32a).

28

CONCLUSION

The Louisiana Supreme Court, after carefully considering the convoluted facts of this case,

and state and federal jurisprudence governing the analysis of conflicts of interests, held that

Respondent was entitled to a new tral at which he could be represented by an attorney who did not

labor under divided loyalties fatal to a competent defense. The State of Louisiana has failed to set -

forth any compelling basis for this Court to review the Louisiana Supreme Court’s decision.

Accordingly, for the reasons set forth above, Respondent respectfully requests that this Court deny

the State of Louisiana’s petition for wnt of certiorari to review the judgment of the Louisiana

Supreme Court in this matter.

Respectfully submitted,

Mearae ae Meee

Marcia A. Widder

The Capital Appeals Project

636 Baronne Street

New Orleans, LA 70113

(504) 529-5955

Attorney for Respondent,

Thomas Frank Cisco

29

APPENDIX A

STATE OF LOUISIANA eh 14™ JUDICIAL DISTRICT COURT

VS. NO. 17646-98 ors PARISH OF CALCASIEU

THOMAS FRANK CISCO . 3 STATE OF LOUISIANA

\ ; ‘FILED: 3

CLERK OF COURT

~ TE’ T

THE DISTRICT ATTORNEY’S OFFICE

NOW INTO COURT comes the State of Louisiana, through Rick Bryant, District Attorney,

represented herein by the undersigned Assistant District Attorney, who. in support of this motion to

recuse the Calcasieu Parish District Attorney's Office from the prosecution of this case presents the

following reasons: '

‘

The Louisiana Supreme Court reversed the defendant’s murder convictions and death

sentence and remanded this case for the appointment of new defense counsel and a new trial.

(Exhibit A). The basis for the Court's decision was an actual conflict of interest which stemmed

from defense counsel Evelyn Oubre’s simultaneous representation of the defendant and prosecution

witness Deputy Donald “Lucky” Delouche. Ms. Oubre represented the defendant in the capital case

oe against him, and Deputy Delouche in an unrelated family law matter.

r

Calcasieu Parish Assistant District Attorney Ric Oustalet currently sieiiaiaiae Deputy

Delouche in the same family law matters in which Ms. Oubre represented him at the time of the

defendant's trial. (Exhibit B). The onset of this representation of Deputy Delouche preceded Mr.

Oustalet’s employment as an Assistant District Attorney. Neither Mr. Oustalet nor the District

Attorney’s Office believed this representation pésed any conflict at the time Mr. Oustalet was hired.

« Indeed, the potential for a conflict of interest in this regard only arose when the Louisiana Supreme

Court reversed the defendant’s convictions and ordered a new trial, an unfortunate event the State

did not foresee.

a

Because of the Louisiana Supreme Court’s decision in which it found a conflict of interest

by Ms. Oubre’s representation of Deputy Delouche on family law matters and the defendant in his

criminal case, the State is concerned that a conflict of interest could be found by an Assistant District

Attorney’s representation of State witness Deputy Delouche if the defendant is prosecuted by the

Calcasieu Parish District Attorney’s Office at another trial. Although this representation of Deputy

Delouche by Mr. Oustalet does - involve the classic conflict of interest situation of joint

representation. it certainly raises the potential for a conflict of interest. as well as various ethical

seen

4. .

The State has filed a certiorari petition with the United States Supreme Court seeking reversai

of the Louisiana Supreme Court's decision. This petition has been sent to the United States Supreme

Court and defense counsel. However, for security and processing reasons it will not be through the

screening process, and thus officially filed, for another few weeks. Since the time limitations for a

\

new trial set forth in LSA-C.CrP. Art. 582 apply to this ones. it is imperative that the State file this

motion now to allow all parties adequate time to prepare for a second trial. The chances of the State’s

certiorari petition being granted are slim, and if the State is forced to retry this defendant then the

ethical considerations denoted above are a legitimate cause for concern.

; 5.

To avoid even the appearance of impropriety and to save the victims’ families and the

taxpaying citizens of Louisiana from the soci of some future appellate court awarding the

defendant a third trial on the basis of Mr. Oustalet’s isgiaitthiaiaastal Deputy Delouche, the State

herein moves for the recusal of the Calcasieu Parish District Attorney’s Office under LSA-C.Cr.P.

Arts. 680 et seq. The prosecution of this defendant and his second trial on murder charges should

be handled by the es Attorney General's Office. Attorney General Charles Foti ten been

contacted by the District Attorney’s Office and is aware of, and in agreement with, the State’s

motion.

WHEREFORE, the State respectfully requests that this Honorable Court grant this motion

to recuse and assign the Attorney General’s Office with the task of the criminal prosecution of this

defendant.

Respectfully submitted,

RICK BRYANT

DISTRICT ATTORNEY

DAVID L. KIMBALL

ASSISTANT DISTRICT ATTORNEY

F. WAYNE FREY

ASSISTANT DISTRICT ATTORNEY

Co La S 5

CARLA S. "ist ™~

ASSISTANT DISTRICT ATTORNEY

1020 RYAN T

LAKE CHARLES, LA 70602

Vv

I hereby certify that the above and foregoing has been hand-delivered to Judge David A.

Ritchie, and sent by certified mail to defendant's counsel of record, Marcia A. Widder, 636 Baronne

Street, New Orleans, LA 70113 this | day of February, 2004.

Cate hd

i,

CARLA 8. SIGLER

STATE OF LOUISIANA , 14™ JUDICIAL DISTRICT COURT

VS. NO. 17646-98 . PARISH OF CALCASIEU

THOMAS FRANK CISCO). . STATE OF LOUISIANA

FILED: .

CLERK OF COURT

¥ ORDER

The State’s motion to recuse is hereby granted. The Calcasieu Parish District Attorney’s

Office is recused and the Louisiana Attorney General’s Office is assigned to the prosecution of this °

case.

THUS DONE AND SIGNED this day of February, 2004 in Calcasieu Parish, Lake

:

Charles, Louisiana. ‘ \

JUDGE DAVID A. RITCHIE

PLEASE SERVE:

Calcasieu Parish District Attorney’s Office .

Louisiana Attorney General’s Office

Marcia A. Widder

U/

STATE OF LOUISIANA

PARISH OF CALCASIEU

AFFIDAVIT

BEFORE ME, the undersigned Notary Public, pérsonally came and appeared RICHARD C.

OUSTALET, JR., a person of the full age of majority, who did swear or affirm under oath and state

as follows:

That the affiant RICHARD C. OUSTALET, JR. is an attorney, licensed to practice law

within thé State of Louisiana;

That the affiant is an Assistant District Attorney for the 14" Judicial District Court, Parish

of Calcasieu, State of Louisiana; i

That prior to and since his employment with the aforementioned District Attorney’s office,

affiant has maintained a private law office located at 111 West Plaquemine Street, Jennings,

Louisiana;

‘That since March of 2003, the affiant has been and continues to be the legal representative

and attorney of record for Donald “Lucky” DeLouche in various civil matters in both the 14" Judicial

District Court and the 31" Judicial District Court;

That as a result of this representation, affiant may have information which would be

protected under the attorney-client privilege which may or may not be relevant to criminal

proceedings in which Donald “Lucky” DeLouche is a key witness for the State of Louisiana;

SWORN TO AND SUBSCRIBED before me, Notary Public, in the presence of the

undersigned witnesses at Lake Charles, Louisiana this 20" day of January, 2004.

Riots

. oe ) RICHARD C. OUSTALET, JR.

NOTARY PUBLIC

APPENDIX B

FOO. 20. ZUU4 9:9)9rmM a.

(Page 4 of 2~) VECAN UF VUURt we S190 “omy

STATE OF LOUISIANA “ 146" JUDICIAL DISTRICT COURT

VS. NO. 17646-98 a ® PARISH OF CALCASIEU

THOMAS FRANK CISCO ° STATE OF LOUISIANA

; Ae)

rived: A“/(-04 ; ' "wf t

CLERK OF COURT

ORDER

The State's motion to recuse is hereby granted. The Caicesieu Parish District Attorney’s

Office is recused and the Louisiana Attorney General's Office is assigned to the prosecution of this

case.

(4

THUS DONE AND SIGNED this _/ ‘day of February, 2034 in Caleasieu Parish. lake

Charles. Louisiana.

oo a att” el a

, ee ha

JUDGE DAVID A. RITCHIE

PLEASE SERVE:

Calcasieu Parish District Attorney”s Office

- 1020 Ryan Street

Lake Charles. LA, 70602

Louisiana Attorney General's Office

» Attn: Julie Cullen

Livingston Building F

1885 North Third Suet !

Baton Rouge. LA. 70802

_ Marcia A. Widder

636 Baronne Strect

New Orleans. LA. 70113

bxA bi} ‘. Case:98-CR-017646, Date. 20040211

APPENDIX C

RICK BRYANT

District Attorney

FOURTEENTH JUDICIAL DISTRICT

CALCASIEU PARISH .

RONALD A. ROSSITTO 1020 RYAN

FIRST ASSISTANT P.O. BOX 3206

DISTRICT ATTORNEY March 1, 2004 LAKE CHARLES, LA. 70602

PHONE (337) 437-3400

FAX (337) 437-3325

Marcia A. Widder

The Capital Appeals Project

636 Baronne Street

New Orleans, Louisiana, 701 13-1004

Re: State of Louisiana t

7s

Thomas Frank Cisco .

United States Supreme Court No. 03-1153

Dear Marcia:

On February 9, 2004, the Calcasieu Parish District Attorney’s Office filed a petition for writ

of certiorari on behalf of the State of Louisiana with the United States Supreme Court. On February

11, 2004, the Calcasieu Parish District Attorney’s Office filed the State's Motion and Order for

Recusation of the District Attorney's Office with the trial court. The trial court granted the State’s

motion on February 11, 2004. On February 19, 2004, the Louisiana Department of Justice sent a

letter to the Calcasieu Parish Clerk of Court stating that the Calcasieu Parish District Attorney’s

Office has been recused “from any investigation or prosecution” of the case. A copy of this letter «

is enclosed.

To clarify any confusion, the Calcasieu Parish District Attorney’s Office filed the above

referenced motion in order to recuse itself from State of Louisiana v. Thomas Frank Cisco. LSA-

C.Cr.P. Arts.680 et seq. of the Louisiana Code of Criminal Procedure deal with recusal, and it is

evident from these articles that when a District Attorney is recused from a case he is removed from

the entirety of proceedings in that case. That was the intention of the Calcasieu Parish District

Attorney’s Office when it filed the recusal motion, and it is undoubtedly the legal effect of such a

motion being granted.

In response to your letter, and out of an abundance of caution, I contacted the United States

Supreme Court Clerk’s Office. The United States Supreme Court Clerk’s Office assured me that,

as | had believed to be true, no formal papers or motion needs to be filed by this office in order to

withdraw as counsel of record from the case. Rather, a letter notifying the Court of new counsel

would be sufficient. A copy of this letter is enclosed for your convenience.

-

CS/sb

Sincerely,

| Ce.

Oo Wa © SO

Carla S. Sigler é

Assistant District Attorney

State of Louisiana

DEPARTMENT OF JUSTICE

P.O. BOX 94005

BATON ROUGE “

70804-9005

CHaR-ES C. Forti, Jr.

ATTORNEY GENERAL

February 19, 2004 a

Honorable James R. Andrus DVC-04-02-147

Calcasieu Parish Clerk of Court ©

Post Office Box 1030

Lake Charles, LA. 70602

.

a aot sec en tae i oh on

RE: State of Louisiana v. Thomas Frank Cisco

Charge: 17646-98

Dear Mr. Andrus:

Pursuant to Article 680 et seq. of the Louisiana Code of Criminal Procedure, Rick Bryant, .

District Attorney, Fourteenth Judicial District, Parish of Calcasieu, has been recused from any

investigation or prosecution of the above captioned case and the case has been certified to me for

appointment of a District Attorney Ad Hoc.

as

By virtue of the authority granted this office by Article 682 (as amended by Act 652 Regular

Session 1972 Legislature), of the Code of Criminal Procedure, I, hereby accept the appointment

of the court as District Attorney Ad Hoc in the above captioned matter. The Assistant Attorneys

General assigned to the Criminal Division will function in the same manner as Assistant District

Attorneys. This communication is your authority to enroll the Criminal Division of the Attorney

General’s Office as prosecutor of record in the captioned case. Julie Cullen, of my staff, will act

as lead counsel in this case and will be your contact person with this office.

Additionally, please note that C.Cr.P. art. 683.1 authorizes reimbursement to the District

Attorney Ad Hoc for the expenses incurred in the prosecution of recusal matters.

With kind personai regards, I am,

Sincerely,

CHARLES C. FOTI,

Attorney General

BY:

SHEILA M. DYSON

Administrative Assistant

Criminal Program

7 Louisiana Department of Justice :

CCF/smd : ‘ . —

cc: Honorable Rick Bryant

RICK BRYANT

District Attorney

FOURTEENTH JUDICIAL DISTRICT

CALCASIEU PARISH zs

RONALD A. ROSSITTO 1020 RYAN

FIRST ASSISTANT \ r P.O. BOX 3206

DISTRICT ATTORNEY ° March 1, 2004 | LAKE CHARLES, LA. 70602

‘ PHONE (337) 437-3400

Honorable William K. Suter er

Supreme Court of the United States

Office of the Clerk

Washington D.C. 20543-0001

Re: State of Louisiana

Vv.

Thomas Frank Cisco

Docket No. 03-1153

Dear Mr. Suter:

On February 9, 2004, the Calcasieu Parish District Attorney’s Office filed a petition for writ

of certiorari on behalf of the State of Louisiana with the Supreme Court. On February 11, 2004, the

Calcasieu Parish District Attorney’s Office filed a State's Motion and Order for Recusation of the.

_ District Attorney's Office with the trial court. The trial court granted the State’s motion on February

11, 2004. On February 19, 2004, the Louisiana Department of Justice sent a letter to the Calcasieu

Parish Clerk of Court confirming that the Calcasieu Parish District Attorney’s Office has been

recused “from any investigation or prosecution” of the case. A copy of this letter is enclosed.

The Calcasieu Parish District Attorney’s Office has been recused from all stages of this case,

including any proceedings before the Supreme Court. The Louisiana Attorney General’s Office is

now counsel of record for the State in State of Louisiana v. Thomas Frank Cisco. Please substitute

the Louisiana Attorney General’s Office as listed counsel of record for the State of Louisiana in any

proceedings before the Supreme Court in this case. Therefore, please direct all future

correspondence to Ms. Julie Cullen at the Louisiana Attorney General’s Office, as she will serve as

lead counsel for the State. Her address is provided below:

Ms. Julie Cullen

P.O. Box 94005 ,

Baton Rouge, Louisiana, 70804-9005

Tel. # (225) 326-6200 ;

Sincerely,

Carla S. Sigler

CS/sjb Assistant District Attorney - Appellate Section

APPENDIX D

cor

No.

SUPPLEMENTAL

COpPy

UPREME COURT

DUPLICATE B Toren a, fe c/3e

Volume No. Lon T

Filed oe

> Clerk

STATE OF LOUISIANA

Plaintiff and APPELLEE

VERSUS

Thamar +. Crses

Defendant and APPELLATE

APPEAL FROM

14TH . . . .

The Judicial District Court for the

Parish of CALCAS LEU

No. Ro. 1954-98 ' HON. Pf. Mingldi

P= Judge

Lom}

<= }--

< [23 ASST. D.A.. WAYNE FREY

a. | Gi. 1020 RYAN ST., LAKE CHARLES, LA 70601 STATE

2 * .

' Counsel for

a .

=o

~

Counsel for __ DEFENDANT

MS. EVELYN OUBRE

522 CLARENCE ST., LAKE CHARLES, LA 70601.

LEMENTAL oe

so CORD COPY

cory

IN THE FOURTEENTH JUDICIAL. DISTRICT COURT

IN AND FOR THE PARISH OF CALCASIEU

STATE OF LOUISIANA

STATE OF LOUISIANA

VERSUS : RC1954-98

THOMAS F. CISCO, UR.

Evidence adduced and proceedings

had in the above numbered and entitled matter on

September 24, 1998, at 9:30 o'clock, a.m, before

the Honorable Fred R. Godwin, Judge of the

Fourteenth Judicial District Court in and for the

Parish of Calcasieu, State of Louisiana.

APPEARANCES :

Mr. F. Wayne Frey

Assistant District Attorney

Lake Charles, LA

Counsel for the State

Ms. Evelyn Oubre

‘Attorney at Law

Lake Charles, LA

Mr. John LaVern

Public Defenders' Office

Lake Charles, LA

Counsel for the

Defendant

Defendant present in Court

Also Present: Mr. Clive Stafford-Smith

WOE

os)

ELIZABETH H. SURLES (>

OFFICIAL COURT REPORTER ie

P. ©. Box 3210, Lake Charles, LA 70602

Phone (337)- or 437-3530 Ext. 144

%

THE COURT:

All right. All right, Ms. Oubre, '

are you ready to proceed?

MS. OUBRE:

One moment, Your Honor, please,

Sir. May I have a private moment with my

client, sir?

THE COURT:

Yeah.

[At this stage of the proceedings, other

unrelated matters were taken up.]

THE COURT:

/ We're ready to proceed on the --

MS. OUBRE:

Prior to going into the motion for

samples, a problem -- potential problem

has arisen, and the fact that I have been

appointed as lead counsel for Mr. Cisco.

The Violent Crimes Task Force was the

agency that investigated the case. The

chief of that office is Mr. Lucky

DeLouche, whom I represent in family

court matters, as well as his wife. Also

on the Violent Crimes Task Force is Mr.

Victor Salvador, who I also represent in

family court matters. I have explained

this to Mr. Cisco, I have explained it to

Mr. DeLouche and Mr. Salvador. I have

prepared a written document for Mr. Cisco

to sign. He has Signed.it. I have gone

back over it with him again this morning,

explained to him the potential conflict,

ELIZABETH H. SURLES Page 3

OFFICIAL COURT REPORTER

.P. O. Box 3210, Lake Charles, LA 70602

Phone (337) or 437-3530 Ext. 144

1 although I do not see one, and according

2 to the Code of Professional Conduct, I do ; i

3 not see one, I want ‘to be absolutely

4 cautious and I want to do what Mr. Cisco

i) requests of me. And it is my

6 understanding as of still this morning

7 Mr. Cisco desires that I remain as his :

8 lead counsel. a

9 THE COURT:

10 | All right. Let me read what's been

41 signed here.

1-2. MS. OUBRE: 7 '

13 And I have provided a copy of that

14 to Mr. Frey, sir.

15 ' MR. FREY:

16 I acknowledge receipt, Your Honor.

17 [Court reading documents]

18 MS. OUBRE:

19 é Mr. Cisco, would you stand up, the

20 Court's going to address you, sir.

21 THE COURT:

22 Yeah, Mr. Cisco, come up to the

23 microphone here with your attorney.

24 [Does so]

25 THE COURT:

26 I've been handed this letter that

27 Ms. Oubre wrote, the original letter Ms. s

28 Oubre wrote to you.

29 me. CiSCO:

30 7@8, Sir.

31 THE COURT:

32 And it shows here that you've signed

MMIGa

ELIZABETH H. SURLES Page 4

OFFICIAL COURT REPORTER

P. O. Box 3210, Lake Charles, LA 70602

Phone (337) or 437-3530 Bxt. 144

31

32

MR. CISCO:

Yes, sir.

THE COURT:

Okay. You understood it?

‘MR. CISCO:

Yes, sir. ,

THE COURT: |

Let me just point out. I can't sit

it. I'll show it back to you there, and

do you -- you signed’ it there on thac

paragraph, --

MR. CISCO:

Yes, sir.

THE COURT:

-- right here, that's your

Signature? We need to Say it in the

microphone.. This letter of September

16th, 1998 to you shows your signature on

it; and you did sign that?

MR. CISCO:

Yes, sir.

THE COURT:

And you read the letter?

here and think of a lot of different ways

that some conflict can come up, but let

me just give you one that comes to mind,

and let you be sure you see what we're

talking about here. For example, let's

Suppose that Mr. DeLouche ends up being a

witness for the State-against you, giving

testimony that's harmful to your case.

Ms. Oubre is obligated to cross examine

MVC)

ELIZABETH {. SURLES Page 5 ‘

OFFICIAL COURT REPORTER

P. O,. Box 3210, Lake Charles, LA 70602

; Phone (337) or 437-3530 Ext. 144

‘

him and try to bring out whatever she can

bring out that's helpful to your case.

MR. FREY: i

Your Honor, if I could, just to make

things perfectly clear, Deputy DeLouche

will be a witness in this case against

Mr. Cisco.

THE COURT: :

Well, okay, it -- well, you've heard

that said now, that he will be a witness.

All right. There is the -- there is at

least the potential, or the concern, for

example, that you may at some point have

some feeling that Ms. Oubre, because she

represents Mr. DeLouche personally, isn't

being as aggressive as you think she

ought to be, or isn't pushing him as much

as you think she- ought -- I don't know,

I'm just -- that's just one little way it

could come up that would -- that's what

we call conflict.

MR. CISCO:

Right.

THE COURT:

As to whether -- as to whether

there's any concern that her duty to you

to be -- fully assert all your rights is -

going to be held back in any way because

of any relationship or duty -- client

relationship she has with DeLouche. And '°-

the same goes for Mr. Salvador. And I

can't Sit here and forecast all the

“OND:

a an

: ELIZABETH H. SURLES Page 6

OFFICIAL COURT REPORTER ;

P. O. Box 3210, Lake Charles, LA 70602

Phone (337) or 437-3530 Ext. 144

different little ways that something may

come up there, but that's what we're

talking about, is something like that.

This letter that's written here uses the

term conflict and everything, and I'm

trying to flesh it out for you, for you

to picture -- so, do you see all of that?

MR. CISCO:

Yes, sir, I understand.

THE COURT:

And you're comfortable with that?

MR. CISCO:

Yes, sir.

THE COURT:

And you want Ms. Oubre to continue

representing you?

MR. CISCO:

THE COURT:

And you're -- you then are waiving

any complaint or problem that you would

otherwise have about conflict because

she's representing you, but happens to

also - long before she ever was appointed

to represent you - represented Mr.

DeLouche in a personal matter.

MR. CISCO:

Yes, I am.

THE COURT:

And that's not a problem for you?

MR. CISCO:

No.

“THEM OD

ELIZABETH H. SURLES - Page 7

OFFICIAL COURT REPORTER

P. O. Box’ 3210, Lake Charles, LA 70602

Phone (337) or 437-3530 Ext. 144

THE COURT:

Okay. Well, I'm satisfied -- what's

What's your education?

MR. CaESCOs

I quit in the 11th grade.

THE COURT:

Okay. What kind of work Have you

done? °

MR. CISCO:

I've done anywhere from roofing to

building house and ceramic tile.

THE COURT:

Well, you certainly sound

sufficiently articulate and able to

understand -- you understand everything

I've said here.

MR. Cisco:

Yes, sir.

THE COURT:

. Yeah. Okay. Well, I'm satisfied

that the matter can proceed and that

whatever conflict that might be can be

and has been waived, and I'm going to

file the letter in the record.

MR. FREY:

We'll call Deputy DeLouche to the

stand, Your Honor.

DONALD DELOUCHE,

after first being duly sworn, was examined and

testified as follows:

DIRECT EXAMINATION

your -- well, let me get this much, too.

‘SAM

ELIZABETH H. SURLES

OFFICIAL COURT REPORTER

P. O. Box 3210, Lake Charles, LA 70602

Phone (337) or 437-3530 Ext. 144

Page 8