Plaisance argues at United States Supreme Court

Posted By at Wednesday, October 21, 2015

Just recently, Mark argued at the United States Supreme Court, a rarity for an attorney given that the court hears less than 70 cases a year of more than 10,000 filed. Mark argued on behalf of Henry Montgomery, asking the court to rule its decision in Miller v. Alabama retroactive. A retroactive decision would give Henry an opportunity to be resentenced and the chance of sentence lesser than mandatory life in prison which the court in Miller said is unconstitutional.

Mark's appearance before the court gained worldwide attention. Check out these links.


Stand-in counsel violates right to counsel

Posted By at Wednesday, February 19, 2014

The right to counsel at sentencing is violated when a defendant is represented only by "stand-in" counsel who is unfamiliar with the case, the Louisiana First Circuit held in State of Louisiana v. Eddie Powell, 2013 KA 1153, (La. App. 1 Cir. 2/18/2014). The facts demonstrate that because Powell's attorney was out of town when the defendant appeared for sentencing, the trial court asked an attorney present in court to "stand-in" with Powell for sentencing.

On appeal, the defendant argued he was denied the right to, and assistance of, counsel under the Sixth Amendment. Writing for the First Circuit, Chief Judge Vanessa Whipple found no record evidence "stand-in" counsel conferred with the defendant prior to sentencing and made no mitigation arguments on behalf of Powell, who received a 30-year sentence at hard labor for first-degree robbery. According to Judge Whipple, the defendant's awareness that he had "stand-in" counsel and the fact that the defendant received less than the presentence investigation report recommended maximum 40-year sentence did not overcome the the defendant's Sixth Amendment right to adequate representation.


Can perpetuating testimony be res judicata?

Posted By at Thursday, February 13, 2014

Can perpetuating testimony be res judicata? Apparently so, according to a recent Louisiana First Circuit Court of Appeal decision. In In Re: William Henry Sanders Application for an Order to Perpetuate the Testimony of William Henry Sanders, 2013 CA 0329 (La. App. 1 Cir. 2/10/14), Sanders, 81, sought to perpetuate his testimony (the primary purpose in perpetuating testimony is to preserve testimony that might otherwise be lost to a prospective litigant, generally because of age or ill health) in anticipation of a boundary action he expected to file against the state of Louisiana.

In a 2-1 decision, the court held that because the underlying action he anticipated filing appeared to have been resolved in a prior proceeding, an exception of res judicata was proper. Judge Randy Parro dissented, pointed out that Sanders' petition was not the boundary action -- which could at some point be subject to an exception of res judicata -- but merely was an action to perpetuate his testimony. According to Judge Parro, the trial court prematurely reached the issue of res judicata since the anticipated boundary action had yet to be filed.Moreover, Judge Parro wrote, the trial court erred in not allowing Sanders to proffer his testimony under La. C.C.P. art. 1636, which is mandatory in permitting a party to make a statement setting forth the nature of the evidence.


Appellate brief structure made easy

Posted By at Tuesday, February 04, 2014

The Louisiana First Circuit now provides a cheat sheet with e-mail notification of a lodged appeal. This "appellate brief structure" hints & tips sheet provides a list of what is now required in an appellant's brief (the appellee's brief does not need to contain each section unless there is a disagreement -- check the rules).

 Most importantly, now, the cover page is counted in the page count. And now, the brief must contain the following headings in order: 

1st Heading -- Table of Contents (not counted in page limit)

2nd Heading -- Table of Authorities (not count in page limit)

3rd Heading -- Jurisdictional Statement

4th Heading -- Concise Statement of the case

5th Heading -- Assignments of alleged errors

6th Heading -- Listing of issues presented for review

7th Heading -- Statement of facts

8th Heading -- Summary of Argument

9th Heading -- Argument

10th Heading -- Conclusion

Don't forget a certificate of service. And it's still a good idea to check the local rules for each appellate court. Although these new rules are part of a change to the Uniform Rules, some appellate courts are already tweaking the rules.


Corroboration of anonymous tip?

Posted By at Monday, February 03, 2014

Does the Fourth Amendment require a police officer, who receives an anonymous tip about a drunken or reckless driver, to corroborate the dangerous driving before stopping a vehicle?

In Louisiana, well yes in the 16-parish First Circuit jurisdiction. Undecided says the Louisiana Supreme Court. And maybe, maybe not in the about to decide United States Supreme Court.

In State v. Barras, 2009-0014 (La. App. 1 Cir. 6/19/09), 20 So.3d 1100, Judge Jewel E. "Duke" Welch, writing for a split panel of the First Circuit (2-1) held that strong interest in public safety justified an investigatory stop of a vehicle based solely on an anonymous tip that the driver might be driving under the influence. Judge Paige McClendon concurred based on the sufficiency of the tip. Judge Randy Parro dissented, writing that the investigatory stop was an unlawful seizure in violation of both the Louisiana and United States constitutions.

The Louisiana Supreme Court sidestepped the issue in State v. Elliot, 2009-1727 (La. 3/16/10), 35 So.3d 247, holding that the occupants of a following vehicle were "citizen informants" and not anonymous tipsters. The court said in resolving the case, it "need not address the jurisprudence holding that an anonymous tip concerning a potential drunk driver may be sufficiently reliable to justify a stop without independent corroboration by the police."

It seems now the United States Supreme Court will get the last word. The precise issue was argued before the court in January 2014. In Navarette v. California, 12-9490, the anonymous tipster merely advised police of a vehicle that was driving recklessly and had left the roadway. A California appellate court found that evidence sufficient to justify a stop.

Navarette argues in brief that without corroboration the tip was unreliable, the tipster could exaggerate or fabricate the tip, and that under Terry v. Ohio, police must have some notion that criminal activity has taken place or is about to take place.

A decision should be forthcoming later in the spring.