Amicus Curiae Brief — Zachary v. Louisiana (No. 08-1074)

FILED

@ MAR 2 4 2009

No. 08-1074 OFFICE OF THE CLERK

Jn the Supreme Court of the Gnited States

ELIZABETH ZACHARY,

Petitioner,

We

STATE OF LOUISIANA,

Respondent.

On Petition for a Writ of Certiorari to

Louisiana Supreme Court

BRIEF OF

THE ORLEANS PUBLIC DEFENDER

AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

Jelpi P. Picou* Stephen Singer

G. Ben Cohen Orleans Public Defender

636 Baronne Street 2601 Tulane Ave., # 700

New Orleans, LA 70118 New Orleans, LA 70119

504-529-5955 504-821-8101

*Counsel of record for the amicus curiae

LEGAL PRINTERS LLC, Washington DC e 202-747-2400 © legalprinters.cam

1

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

Pursuant to Rule 37.2 of the Rules of this

Court, the public defenders of Orleans Parish,

Louisiana, move for leave to file the accompanying

brief as amicus curiae in support of the petition for a

writ of certiorari. Counsel for petitioner has

consented to the filing of this brief, but counsel for

respondent has neither confirmed nor _ denied

consent.

Amicus curiae, responsible for representing

indigent defendants, has a_ strong institutional

interest in the resolution of the questions raised by

the petitioner concerning the constitutionality of the

Obstruction of Justice statute in Louisiana.

Accordingly, amicus should be granted leave to file

the attached amicus curiae _ brief, which

demonstrates the potential for and reality of abuse of

Louisiana’s Obstruction of Justice law.

Respectfully submitted,

Jelpi P. Picou* Stephen Singer

G. Ben Cohen Orleans Public Defender

636 Baronne Street 2601 Tulane Ave., # 700

New Orleans, LA 70113 New Orleans, LA 70119

504-529-5955 504-821-8101

*Counsel of record for the amicus curiae

il

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF AMICUS

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INTEREST OF THE AMICUS CURIAE................. 1

SUMMARY OF ARGUMENT. ..............ccccccsseeeceeeee ees 2

PEOPEEDIINE Es. cnccsssacsnsesnenessnsssekonseieesinlatusaacansuseaeenna 3

I. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE LOUISIANA COURTS HAVE

ELIMINATED JURY REVIEW OF AN ESSENTIAL

ELEMENT OF THE OBSTRUCTION OF JUSTICE

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Il. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE PROSECUTION FOR “OBSTRUCTION

OF JUSTICE” IN LOUISIANA IS WIDESPREAD

AND SUBJECT TO ABUSE. .......... cece ees ce eee 6

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TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000)............. 6

In Re Jordan, 913 So.2d 775 (La. 2005) ..................0 9

Jones v. United States, 526 U.S. 227 (1999)........... 4,5

Kyles v. Whitley, 514 U.S. 419 (1995) ........ ee. 9,10

Monge v. California, 524 U.S. 721 (1998)................... 5

Monroe v. Blackburn, 607 F.2d 148 (5th Cir. 1979)...9

Sparf v. United States, 156 U.S. 51 (18985)........000...... 4

State v. Ates, 418 So.2d 1326 (La. 1982)................... 10

State uv. Bright, 875 So.2d 37 (La. 2004)............... 9,10

State v. Butler, 960 So.2d 1208 (La. App. 2 Cir.

ahaa vice ets one ee eaaae eee ee aida bese aee ones 7

State v. Celestine, 671 So.2d 896 (La. 1996)............... F

State v. Cousin, 710 So.2d 1065 (La. 1998).......... 9,10

State v. Curtis, 384 So.2d 396 (La. 1980) ................. 10

State v. Davenport, 399 So.2d 201 (la. 1981) .......... 10

State v. Dawson, 490 So.2d 560 (La. App. 4 Cir.

1V

State vu. Evans, 463 So.2d 673 (La. 1985) ................. 10

State v. Falkins, 356 So.2d 415 (La. 1978)............... 10

State v. Felton, 522 So.2d 626 (La. App. 4 Cir.

ME ia Stiri hie sat can kktepenea nacre tas tesa pana tennbanenes 10

State v. Green, 493 So.2d 1178 (La. 1986).................. 9

State v. Hammler, 312 So.2d 306 (La. 1975).............. 9

State v. Jones, 983 So.2d 95 (La. 2008) .................. 7,8

State v. Knapper, 579 So.2d 956 (La. 1991) ............. 10

State v. Kyles, 513 So.2d 265 (La. 1987)..................... 8

State v. Lee, 778 So.2d 656 (La. App. 4 Cir. 2001) ...10

State v. Lindsey, 844 So.2d 961 (La. App. 4 Cir.

PN iso NCU Iiiag wick vacaig dvackanl uuumek pubbadacsada esta teasiaeee sare 10

State v. Marshall, 660 So.2d 819 (La. App. 4 Cir.

State v. McKinney, 961 So.2d 589 (La. App. 2 Cir.

| 5 SAE ey one eS Ree See ROPER nn Aer ay nso meee aD 7

State v. Mims, 637 So.2d 1253 (La. App. 4 Cir.

State v. Newton, 973 So.2d 916 (La. App. 2 Cir.

ee oe a eee 7

Vv

State v. Oliver, __ So.2d __ (La. App. 4 Cir. 1996)

aoc rsnnceiusivednbinaantcsvenkess 10

State v. Papillion, 556 So.2d 1331 (La. App. 3 Cir.

i liidntsuspacdessnnsendscaveesecdsr nations 7

State v. Parker, 361 So.2d 226 (La. 1978) ................ 10

State v. Parker, 852 So.2d 3 (La. App. 4 Cir. 2003) ...7

State v. Perkins, 423 So.2d 1103 (La. 1982) ............. 10

State v. Peters, 406 So.2d 189 (La. 1981)...........0.0.... 10

State v. Roberson, 929 So.2d 789 (La. App. 2 Cir.

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STATUTES

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OTHER AUTHORITIES

J. Rakove, Original Meanings, Polictics and Ideas in

the Making of the Constitution, New York, Alfred

re os ncaa ns sueedaeicedahs ses phveesieversdeess 5

John F. Decker, The Varying Parameters of

Obstruction of Justice in American Criminal Law,

a ES ae 8

L. Levy, Freedom of Speech and Press in Early

AMASTICRT TIBLOTY 134 (19GB) .........0ccscccsccsccscccveccvese 4

T. Green, Verdict According to Conscience,

Perspectives on the English Criminal Trial Jury,

1200-1800, University of Chicago Press

re ge cc dyddesiebunnsbisearsearwaeres ave 5,6

1

INTEREST OF THE AMICUS CURIAE'!

Amicus curiae is a_ statutorily-created office

charged with representing indigent defendants,

including those charged with Obstruction of Justice

under La. R.S. 14:130.1.

Given amicus curtae’s institutional

responsibilities, the offices of the Orleans Public

Defender track and monitor the State’s use and

misuse of the obstruction of justice statute. Amicus

curiae also has a critical perspective concerning the

unrestrained prosecutorial and judicial discretion

ceded within the statute and the Louisiana Supreme

Court’s interpretation of it. The abrogation of the

jury trial right in this context has especially

pernicious consequences.

1 Pursuant to Rule 37.6, counsel for amicus curiae state that no

counsel for a party authored this brief in whole or in part, and

no person other than amicus or their counsel made a monetary

contribution to this brief.

2

SUMMARY OF ARGUMENT

This Court should grant certiorari now to

address and_ resolve the _ constitutionality of

Louisiana’s Obstruction of Justice statute, La. R.S.

14:130.1, which permits the prosecution to prove toa

judge (rather than a jury) the facts which determine

the maximum available punishment.

In Louisiana, the Obstruction of Justice statute

provides three separate penalty ranges depending

upon the “proceeding” “obstructed.” See La. R.S.

14:130.1(B)(1) (providing forty (40) year maximum

for obstruction of justice in case involving a potential

life or death sentence); zd. at (B)(2) (providing twenty

(20) year sentence for obstruction of justice of

proceeding involving a sentence at hard labor less

than life); 1d. at (B)(3) (providing for a five (5) year

sentence for the obstruction of a proceeding involving

a sentence not at hard labor).2 Under Louisiana law,

the district court rather than a jury makes the

factual determination about what type of proceeding

was obstructed.

In the preceding eighteen months, the Orleans

Public Defender has represented over thirty-five

defendants charged with obstruction of justice. In

2 The disparate sentencing ranges provided in La. RS.

14:130.1(B) are magnified in the context of Louisiana’s Habitual

Offender Law. Under La. R.S. 15:529.1(A), the mandatory

minimum for a second offender is half the statutory maximum,

and the defendant is subject to twice the maximum term. Thus

a defendant with a prior felony conviction is subject to a term of

2 and a half - 10 years for a violation of La. RS.

14:130.1(B)(3); 10-40 years for a violation of La. RS.

14:130.1(B)(2); and 20-80 years for a violation of La. RS.

14:130.1(B)(1).

3

each of these cases, the defendant confronted the

prospect of a judge and not a jury making the factual

finding that determines the maximum punishment.

This case arises at a time when obstruction of

justice laws are being "used increasingly.” State v.

Jones, 983 So.2d 95, 99 (La. 2008). Moreover, the

Louisiana statute gives the State wide latitude to

prosecute based upon a subjective determination

that the defendant has not cooperated with the police

or authorities. Jd. at 102 (“This statute gives

prosecutors wide latitude. ..”). Indeed, “[a] current

investigation is not required.” Jd. at 103.

Given this wide latitude, a jury check on each

element of the offense is an essential check on state

authority. However, under Louisiana law, the judge

rather than the jury is given the responsibility for

determining which type of proceeding is obstructed.

This determination raises the maximum available

punishment four-fold. When combined with

Louisiana’s Habitual Offender law, the judge’s

determination raises the minimum and maximum

punishment eight-fold.

ARGUMENT

I. THIS COURT SHOULD GRANT

CERTIORARI BECAUSE THE LOUISIANA

COURTS HAVE ELIMINATED JURY REVIEW

OF AN ESSENTIAL ELEMENT OF THE

OBSTRUCTION OF JUSTICE STATUTE.

In 1735, John Peter Zenyer® was prosecuted for

seditious libel under a statute which required the

3 This Court has observed that at least one authority suggests:

4

jury to determine whether the defendant was guilty

of printing and publishing the material but left to

the judge the determination whether the words were

libelous.4

In Louisiana, today, a defendant is charged with

“Obstruction of Justice’ under a statute which

permits the jury to determine whether the defendant

obstructed a proceeding, but leaves to the prosecutor

and judge to determine what type of proceeding the

defendant obstructed.

This Court, in Jones v. United States, noted the

particularly pernicious impact that arises from the:

the leading account of Zenger's trial was, with

one possible exception "the most widely known

source of libertarian thought in England and

America during the eighteenth century." .. It

is just as much beyond question that Americans

of the period perfectly well understood the

lesson that the jury right could be lost not only

by gross denial, but by erosion. See supra, at 17-

20. One contributor to the ratification debates,

for example, commenting on the jury trial

guarantee in Art. III, § 2, echoed Blackstone in

warning of the need “to guard with the most

jealous circumspection against the introduction

of new, and arbitrary methods of trial, which,

under a variety of plausible pretenses, may in

time, imperceptibly undermine this best

preservative of LIBERTY.

Jones v. United States, 526 U.S. 227, 247-48 (1999) (citing L.

Levy, Freedom of Speech and Press in Early American History

133 (1963)).

4 Cf. Sparf v. United States, 156 U.S. 51, 146 (1895) (Justices

Grey and Shiras dissenting)

attempts to confine jury

determinations in libel cases. to

findings of fact, leaving it to the judges

to apply the law and, thus, to limit the

opportunities for juror nullification.

Ultimately, of course, the attempt

failed, the juries' victory being

embodied in Fox's Libel Act in Britain,

see generally T. Green, Verdict

According to Conscience 318-355

(1985), and exemplified in John Peter

Zenger's acquittal in the Colonies, see,

e.g., J. Rakove, Original Meanings

300-302 (1996). It is significant here

not merely that the denouement of the

restrictive efforts left the juries in

control, but that the focus of those

efforts was principally the juries'

control over the ultimate verdict,

applying law to fact (or "finding" the

law, see, e.g., id. at 301), and not the

factfinding role itself... . That this

history had to be in the minds of the

Framers is beyond cavil.

Jones v. United States, 526 U.S. 227, 247-48 (1999).5

See also Apprendi v. New Jersey, 530 U.S. 466

5 See also Monge v. California, 524 U.S. 721, 728-29 (1998)

(Scalia, J. dissenting) (observing that the Sixth Amendment

would not tolerate the provision of a jury trial on a limited

question of culpability, leaving to the judge the determination

of the essential fact that determined the maximum punishment

as “If the protections extended to criminal defendants by the

Bill of Rights can be so easily circumvented, most of them

would be, to borrow a phrase from Justice Field, ‘vain and idle

enactments, which accomplished nothing, and most

6

(2000); Ring v. Arizona, 536 U.S. 584, 610 (2002)

(Scalia J. concurring) (“[A]s I reaffirmed by joining

the opinion for the Court in Apprendi, I believe that

the fundamental meaning of the jury-trial guarantee

of the Sixth Amendment is that all facts essential to

imposition of the level of punishment that the

defendant receives — whether the statute calls them

elements of the offense, sentencing factors, or Mary

Jane — must be found by the jury beyond a

reasonable doubt.”). The lack of a jury check is

especially pernicious in the context of offenses that

could be described as crimes against the state or

court; the very parties that might be described as a

“victim” of the obstruction of justice are left to

determine the maximum available punishment.

Whether for Zenger or Zachary, a scheme that

provides for a jury determination of one element

while providing that the judge determine the second

fact, gives the facade of jury trial without any of its

protection.

Il. THIS COURT SHOULD GRANT

CERTIORARI BECAUSE PROSECUTION FOR

“OBSTRUCTION OF JUSTICE” IN LOUISIANA

IS WIDESPREAD AND SUBJECT TO ABUSE.

The Zachary case is not an anomalous instance

of the operation of an imperfect statute but rather an

unnecessarily excited Congress and the people on [their]

passage.’’).

7

example of a widespread practice with a significant

impact on the operation of the justice system.®

6 See e.g., State v. Jones, 983 So.2d 95, 103 (La. 2008)

(obstruction of justice charged where the defendant dropped a

bag of marijuana from pocket when approached by the police on

the ground that “a current investigation is not required.”); State

v. Newton, 973 So.2d 916, 922 (La. App. 2 Cir. 2007) (finding no

Apprendi violation where “The trial court was only required to

make a determination of the underlying criminal proceedings

(as charged in the bill) that were the basis for the obstruction of

justice charge.”); State v. Washington, 977 So.2d 1060 (La. App.

3 Cir. 2008) (upholding sentence to ten years for, inter alia,

obstruction of justice based upon an attempt to destroy

evidence); State v. McKinney, 961 So.2d 589, 597 (La. App. 2

Cir. 2007) (upholding 5 year sentence for obstruction of justice);

State v. Butler, 960 So.2d 1208, 1210 (La. App. 2 Cir. 2007)

(upholding conviction for attempted obstruction of justice for

allegediy tampering with evidence in a criminal proceeding in

which a sentence of death or lfe imprisonment may be

imposed); State v. Roberson, 929 So.2d 789, 804 (La. App. 2 Cir.

Apr. 19, 2006) (upholding trial court’s sentence of 40 years to

defendant convicted of obstruction of justice); State v. Uloho,

875 So.2d 918 (La. App. 5 Cir. 2004), 888 So.2Zd 192; State v.

Parker, 852 So.2d 3 (La. App. 4 Cir. 2003), (unpub'd), vacated

on other grounds, 03-2736 (La. 2/20/04), 868 So.2d 23

(prosecution for obstruction of justice where defendant dropped

a Marijuana cigarette to the ground and then stomped on it in

an attempt to obliterate); State v. Celestine, 671 So.2d 896 (La.

1996) (prosecution for obstruction of justice where the

defendant purchased six rocks of crack cocaine from an

undercover agent posing as a dealer, and upon immediate

arrest, threw the rocks into the air and only one could be

located from the gravel surface); State v. Simon, 607 So.2d 793

(La. App. 1 Cir. 1992), writ denied, 612 So.2d 77 (La. 1993)

(obstruction of justice charged where the defendant flushed

drugs down toilet); State v. Papillion, 556 So.2d 1331 (La. App.

3 Cir. 1990) (same). It is important to note that — in part

because of the lack of jury trial protection -- the vast majority

of obstruction of justice cases result 1n a plea.

8

Indeed, as the Louisiana Supreme Court has

made clear, the charge of Obstruction of Justice is

increasingly being used by prosecutors to bolster

ancillary charges. See State v. Jones, 983 So.2d 95,

99 (La. 2008) (“This case comes at a time when

obstruction of justice laws are being ‘used

increasingly against drug offenders who, in some

fashion, attempt to destroy or conceal their drugs

when being pursued by the police.” (citing John F.

Decker, The Varying Parameters of Obstruction of

Justice in American Criminal Law, 65 La. L. Rev. 49,

51-52 (2004)); see also id. at 100 (noting the

Louisiana statute is broader [than other states], as it

includes within the definition of "tampering with

evidence" the "intentional alteration, movement,

removal, or addition" of any object or substance "at

the location of any incident which the perpetrator

knows or has good reason to believe will be the

subject of any investigation.").’

The obstruction of justice statute also provides

the state with a significant prosecutorial tool, in

which accomplices, witnesses, and even defense

lawyers can be charged with obstruction of justice for

actions that — in the subjective view of the prosecutor

— impede the prosecution.®

7 Jones recognizes that “This statute gives prosecutors wide

latitude in misdemeanor cases to prosecute a person for

obstruction. .. .”. However the Court determined that this

latitude was ameliorated by the “room for leniency” given to the

sentencing judge. /d. at 103. The possibility of judicial leniency

does not resolve the Apprendi problem.

8 State v. Watts, 835 So.2d 441 (La. 2003), (noting that State’s

snitch/accomplice witness Anthony Spears was charged with

obstruction of justice); State v. Kyles, 513 So.2d 265 (I.a. 1987)

reversed on other grounds (noting that State witness was

9

Over the past eighteen months, there have been

thirty-five charges of obstruction of justice in Orleans

Parish alone. As in the Zachary case, a significant

number of these individuals have also been charged

under the habitual offender provisions of La. R.S.

15:529.1. These provisions result in the exponential

increase in both the minimum and the maximum

punishment available based upon the trial court’s

finding of what type of proceeding the defendant

obstructed.

Amicus Curiae from Orleans Parish has a special

interest in the resolution of this issue because, under

the holding below, the circumstances in which the

jury trial check is most essential become the

circumstances in which its protection is most limited.

Given a history in which Orleans Parish prosecutors

have “tacked too close to the wind,”® the need for a

subject to obstruction of justice charge if he failed to co-

operate); State v. Green, 493 So.2d 1178, 1182 (La. 1986) (noting

that defendant’s attorney would have been subject to criminal

prosecution for failing to disclose evidence provided to him

under the attorney-client privilege); State v. Hammler, 312

So.2d 306, 310 (La. 1975) (noting “defense counsel are not

exempted from prosecution under the statutes denouncing the

crimes of obstruction of justice and subornation of perjury”).

The potential for deleterious use of the statute is exacerbated

where the jury check is eliminated.

3 It must be observed that Louisiana (and Orleans Parish

particularly) has been marred with jarring instances of

prosecutorial indiscretion. See, e.g., Kyles vu. Whitley, 514 U.S.

419, 441 (1995): Monroe v. Blackburn, 607 F.2d 148 (5th Cir.

1979); In Re Jordan, 04-B-2397 (.a. 06/29/2005); 913 So.2d 775

(suspending Orleans Parish prosecutor for failing to turn over

exculpatory information); State v. Bright, 02-KP-2792 (La.

05/25/04); 875 So.2d 37: State v. Cousin, 96-KA-2973 (La.

4/14/98), 710 So.2d 1065 (reversing on other grounds but noting

10

jury check on prosecutorial charging and judicial

fact-finding 1s essential.

Certiorart review is further warranted here

because the potential for significant criminal

exposure (up to 80 years in prison) without a jury

that in capital murder case, “[t]he prosecutor did not disclose

this obviously exculpatory statement to the defense prior to the

trial”); State v. Lindsey, 02 2363 (La. App. 4 Cir. 4/2/03), 844

So.2d 961; Michael Perlstein, Jordan drops charges in 1975

murder; Two men freed on eve of retrial, Times Picayune (New

Orleans, La.), June 24, 2003, at Metro 1; State v. Thompson,

02-6361 (La. App. 4 Cir. 7/17/02), 825 So.2d 552: Gwen Filosa,

N.O. man cleared in '84 murder; New trial in Liuzza killing

brings an emotional end to epic case, Times Picayune, May 9,

2003, at National 1 (after retrial, Thompson acquitted in less

than one hour); State uv. Lee, 00-2429 (La. App. 4 Cir. 1/4/01);

778 So.2d 656; State v. Marshall, 81-3115 (La. App. 4 Cir.

9/5/95), 660 So.2d 819; State v. Mims, 94-0333 (La. App. 4 Cir.

1994); 637 So.2d 1253; State v. Falkins, 356 So.2d 415 (La.

1978); State v. Parker, 361 So.2d 226 (La. 1978); State v.

Curtis, 384 So.2d 396 (La. 1980); State v. Perkins, 423 So.2d

1103 (La. 1982); State v. Evans, 463 So.2d 673 (La. 1985); State

v. Knapper, 579 So.2d 956 (La. 1991); State v. Oliver, 94-1642,

p. 30-34 (La. App. 4 Cir. 1996)(“[a] prosecutor should not fail to

make timely disclosure, at the earliest feasible opportunity, of

the existence of all evidence or information which tends to

negate the guilt of the accused or mitigate the offense charged

or which would tend to reduce the punishment of the accused.”);

State v. Ates, 418 So.2d 1326, 1329 (La. 1982): State vu. Peters,

406 So 2d 189 (La. 1981); State v. Davenport, 399 So.2d 201,

204 (La. 1981); State v. Dawson, 490 So.2d 560, 563 (La. App. 4

Cir. 1986); State v. Felton, 522 Se.2d 626, 627 (La. App. 4 Cir.

1988); State v. Rostere, 488 So.2d 965, 969-71 (La. 1986) (failure

to turn over statements of witnesses inconsistent with the

prosecution case). Indeed, of the seven men exonerated from

Louisiana’s death row since 1981, four were prosecuted in

Orleans Parish, and all four of these cases Kyles, Causin,

Thompson and Bright involved Brady violations.

11

determination may impel defendants to accept a plea

and waive appellate’ review. Thus, though

defendants are routinely charged with obstruction of

justice in Orleans Parish, there are relatively few

instances 1n which the statutory scheme can be

challenged.

CONCLUSION

For the foregoing reasons, amicus curtae

respectfully suggests that the petition for a writ of

certiorari be granted.

Respectfully submitted,

Jelpt P. Picou* Stephen Singer

G. Ben Cohen Orleans Public Defender

636 Baronne Street 2601 Tulane Ave., # 700

New Orleans, LA 70113 New Orleans, LA 70119

504-529-5955 504-821-8101

*Counsel of record for the amicus curiae

March 24, 2009

RITA REIL IE RIO, SEE RE ARIE IE TIS BG RIOS EAI EON BOL a OOTP EE 5 IE ORE ER SB ANE ASCOT EI