This past session in the Louisiana legislature was an active one for the criminal law. In addition to some laws that did not pass—most notably (and unfortunately) a provision to require prosecutors to divulge all excupatory information to the defense—there were significant changes in a number of areas. Below is a summary of some of the highlights. I’ll complete the review in a later post. For a complete list of the new laws, go to http://lapda.org/site76.php.
HB512, effective August 1, 2012, provides that admissions of criminal conduct that occur during certain parole revocation proceedings (see LA C.Cr.P. Art. 899.1 and LA RS 15:574.7) cannot be introduced in evidence during a criminal trial. The act modifies LA Code of Evidence Article 803(8)(b)(i), which specifies certain exceptions to the rule. This act restricts one of those exceptions so that the exception does not cover reports from the parole proceedings.
HB9 would amend the state constitution to permit the legislature to strip retirement benefits from public employees who are convicted of felony acts associated with their positions. As this is a proposed constitutional amendment, it will be submitted to the voters on November 6, 2012.
SB 303 would amend the state constitution to provide that the right of each citizen to keep and bear arms is fundamental and shall not be abridged. Any infringement of the right would be subject to strict scrutiny by the courts. Again, this will be voted on November 6, 2012.
HB581, effective August 1, 2012, makes an important change to provisions regarding bail. This Act creates C.Cr.P. Art. 334.4, which addresses the situation where the District Attorney dismisses a case but then reinstitutes the same or lesser charge in another prosecution. The new code provision requires a judge to reinstate a defendant to the bail that he or she posted in the case that was dismissed, so long as the surety consents in writing. Additionally, the new code provisions permits Orleans Parish judges to establish rules allowing them to issue bonds and releases telephonically.
Practice Thought: Defense attorneys may want to speak with their clients’ bondsmen to make sure the bondsmen will agree to reinstate the bond if there is a dismissal/reinstitution. Or, hopefully, bondsmen will modify their standard contracts to agree up front.
HB980, effective August 1, 2012, limits a court’s ability to issue a warrant when there has been an “at-large” screening, meaning that the district attorney has filed a bill of information charging someone with a crime, but there has never been any probable cause determination that the person actually committed the crime. This provision modifies C.Cr.P. Art. 496 to state that a court shall issue an arrest warrant in such situations only if the bill of information is accompanied by an affidavit establishing probable cause.
Practice Thought: Although the new provision does not expressly state that arrest warrants cannot issue unless the bill is accompanied by an affidavit, that is the way it should be interpreted.
HB1068, effective May 17, 2012, provides a welcome avenue to deal with certain mandatory minimum sentences. The act should, hopefully, make meaningful change in Louisiana’s over-imprisonment culture possible.
The bill creates C.Cr.P. Art. 890.1, which permits the prosecution, defense, and the court to agree to waive mandatory minimum penalties for any crime except crimes of violence or sex offenses. This will likely have the most effect in non-violent drug cases, where mandatory minimum sentencing provisions can result in extended prison terms.
Practice Thought: Such agreements should be expressed clearly in the record, preferably in writing, so that there is no confusion once the defendant is transferred to DOC custody.
SB329, effective August 1, 2012, prohibits judges from allowing defendants to be released on their own recognizance (meaning they don’t have to post a bond first) if they have been charged with certain listed offenses. Although it would be unlikely for anyone charged with most of the offenses to be released on an OR bond, there are some surprises. For example, alleged second-offense DUI offenders can no longer get an OR bond.
SB659, effective August 1, 2012, makes some important revisions to the discovery provisions of the Code of Criminal Procedure. It primarily modifies Article 521 and 717, and it creates a new Article 725.1.
The act modifies Article 521 to provide that if the defendant requests exculpatory material from the state within 15 days of arraignment (or a later date if permitted by the court), then the court must fix a date by which the state will provide that information. This could be an important tool for defense counsel to ferret out beneficial information that the state has in its possession.
–Practice Thought: How will this provision be enforced? Will the court impose sanctions on the state if it is shown that prosecutors failed to comply with a court order to produce exculpatory material by a certain date?
The act also modifies Article 717, which deals with what information the state must provide to the defense upon a defense request. The act creates subsections to Article 717 that require the DA to provide the defense with (1) the criminal records of any state witnesses and (2) any inducement offered by the district attorney to secure the testimony of a witness in its case in chief against the defendant. The act states that the district attorney does not have to turn this information over until trial.
Practice Thought: Brady v. Maryland already required the district attorney to provide this type of material to the defense, and there are Supreme Court cases acknowledging that exculpatory materials can radically effect plea negotiations. Is the part of this act permitting the district attorney to hold this material until trial constitutional? I don’t think it is, especially considering the Supreme Court’s recent cases on plea negotiations and effective assistance of counsel. See Missouri v. Frye and Lafler v. Cooper. How can an attorney effectively advise a client on whether to accept a plea offer if the state is withholding information that effects the evaluation of the situation?
Finally, the act creates Article 725.1, which mandates that the defense provide the state a witness list before the beginning of the defense case. This provision applies only if the defense has requested information regarding the state’s witnesses pursuant to Article 71