Louisiana Prosecutorial Misconduct

A study of criminal appeals from 1970 to the present revealed 168 Louisiana cases in which a defendant alleged prosecutorial error or misconduct. In 27, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction sentence or indictment. In 13, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant. Out of all the defendants who alleged error or misconduct, two later proved their innocence.

Out of the 27 appeals dealing with alleged prosecutorial error or misconduct, 14 involved the prosecution withholding exculpatory evidence from the defense. Ten involved improper trial arguments, two involved improper tactics and one involved discrimination in jury selection.

Former Jefferson Parish assistant district attorney Caren Morgan’s conduct prompted state appellate courts to reverse two first-degree murder convictions.

In June 2002, the state Supreme Court reversed Edward Harris’ murder conviction because Morgan discriminated against blacks in jury selection. The court found specific problems with regard to Morgan’s exclusion of one potential juror.

“The prosecutor in the instant case, in addition to giving thinly veiled reasons…explicitly states that she struck [the potential juror] because he was black,” wrote Justice Chet Traylor. “We conclude that the manner in which the state sought to dismiss jurors in this case, based solely on race, amounts to a violation of the defendant’s constitutional rights.”

In August 1998, the state appeals court reversed Kiana Calloway’s murder conviction because Morgan did not disclose two eyewitness’ statements to the defense. Both of the statements contradicted the state’s evidence at trial. For instance, one eyewitness’ statement that the state concealed described the perpetrator as being about 25 years old, 6 feet 3 inches tall, weighing about 200 pounds and wearing a black t-shirt with writing on it. Another eyewitness’ statement that the state concealed described the assailant as being at least 6 feet tall, with a medium build and wearing a light blue dress shirt.

At the time of the shooting, Calloway was 16 years old, between 5 feet 10 inches and 5 feet 11 inches tall and weighed between 150 and 160 pounds.

In its decision reversing Calloway’s conviction, the court held that the inconsistencies in eyewitness statements “might have bolstered the defense theory that the witnesses colluded to cover up what really happened on the night in question.”

“The evidence was material directly to guilt or innocence and to credibility or impeachment of the witnesses,” wrote Justice James L. Cannella. “The failure to provide this information to the defense seriously undermines the confidence in the verdict.”

The Center’s study revealed nine cases in which judges ruled that New Orleans prosecutors withheld exculpatory evidence from the defense.

In July 2002, the state appeals court reversed John Thompson’s murder conviction because New Orleans prosecutor Gerry Deegan withheld evidence from the jury and defense.

In December 1984, Ray Liuzza Jr. was shot to death during an armed robbery. Less than two months later, the state indicted John Thompson and Kevin Freeman for the murder. After local media published Thompson’s photograph, a group of teenagers who recently were victims of an attempted carjacking came forward and said he was the perpetrator.

Although the murder occurred after and was not related to the armed robbery, the state first tried Thompson for the armed robbery. During trial, all three victims identified Thompson as the attacker. No one introduced or discussed some physical evidence, blood, that would have cleared Thompson.

At the murder trial, prosecutor Deegan urged the jury to consider Thompson’s armed robbery conviction in deciding whether to implement the death penalty. Deegan did not disclose to the jurors that blood identification evidence had conclusively proved that Thompson did not commit the armed robbery.

The appellate court ruled that if Thompson had known the blood evidence existed which would have exonerated him, he would have testified in his defense at trial. Defendants with felony convictions tend not to testify at trial because it opens to the door for the prosecutor to ask questions about the prior offenses.

“Here, [Thompson] was denied his right to testify on his own behalf based upon the improper actions of the State in the other case,” wrote Judge Michael E. Kirby. “Indeed, the relator’s case is more egregious in that it was the State’s intentional hiding of exculpatory evidence in the armed robbery case that led to his improper conviction in that case and his subsequent decision not to testify in the instant case because of his improper conviction.”

The state retried Thompson in May 2003. After deliberations, which lasted less than an hour, the jury acquitted him.

In January 2001, the state appeals court held that George Lee III’s charges for sexual battery and kidnapping could not stand because New Orleans prosecutor Lionel Burns withheld exculpatory evidence from the defense and jury. In his appeal to the Supreme Court, Lee also alleged that Burns planted inculpatory evidence.

During Lee’s October 2000 trial, Judge Arthur Hunter declared a mistrial and held Burns in contempt of the court after he asked a testifying officer to pull a wad of napkins out of the pants Lee was supposedly wearing during the assault. The state’s evidence showed that Lee would use napkins to clean himself after an assault; finding napkins in Lee’s pants helped the prosecution’s case. Yet Burns had not disclosed the napkins’ existence to the defense. Hunter sentenced Burns to six months in prison for contempt, which was reduced to a $500 fine on appeal.

In his decision for the appeals court, Justice Dennis Bagneris Sr. wrote it was uncertain whether Burns had planted the evidence, but because Burns did not disclose its existence to the defense, Judge Hunter was correct in declaring a mistrial. The court upheld Burns’ contempt citation because he did not disclose the napkins to the defense.

In August 1998, the state appeals court reversed Jermaine Davis, Eric Laymon and Eric Rogers’ murder convictions because New Orleans prosecutors Allison Elsee and Patrick Connick did not timely disclose exculpatory evidence to the defense.

Before trial, defense counsel attempted to interview eyewitnesses, whose testimony regarding the appearance of the assailants differed from that of the witnesses the state planned to call to the stand. Even though they had the names and addresses of these witnesses, the prosecutors did not provide them to defense counsel, despite a specific request.

“Had the prosecution provided the defense with this information at the outset the defendant would have been able to interview these witnesses and make an investigation early on in the prosecution,” wrote Justice Patrick Schott.

The court ruled that the state witness’ identification of the defendants was “highly questionable,” and if the state had timely disclosed the other eyewitnesses’ information, the jury might have reached “a different result.”

In October 1996, the state appeals court reversed Alfred Oliver’s armed robbery and kidnapping convictions because the state withheld exculpatory police reports from the defense.

“In this case, disclosure of the withheld reports to competent counsel may have made a different result possible,” wrote Judge Miriam G. Waltzer. “Since the essence of the State’s case was the testimony of Gray and Coleman, the alleged victims who identified Oliver as one of the robbers and kidnappers, disclosure of their prior statements and vigorous cross-examination may have substantially reduced or destroyed their credibility.”

A dissenting judge thought the state’s failure to disclose the police reports was harmless error and would have upheld the convictions.  ¶ 9:10 AM