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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0218%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

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
IRIE TEs 52 00esesscannseseendscasnioiananscsseunconietens ieslghenenenne 3

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

EAE CARA ISECIIN 20.5 cccssecrsesnseversensnnnnnes oohanssancaemenenen 11

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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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lois p speci puéunnnnesstececsev sseun 2, 10
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0218%3A2. Public record. Not legal advice.