Sea change in criminal jurisprudence becomes law


Gov. Bobby Jindal signed legislation designed to reduce “Perry Mason moments” and Louisiana’s high rate of wrongful convictions.

Both prosecutors and defense lawyers say House Bill 371 is a historic sea change in the way criminal trials are handled in Louisiana.

Yet, legislative committees heard from no witnesses, asked few questions and held no debates before both chambers approved the legislation in a matter of minutes.

“This is the biggest change in criminal law Louisiana has made in decades,” said George Steimel, lobbyist for the Baton Rouge-based Louisiana Association of Criminal Defense Lawyers.

“It really is a big deal,” said Pete Adams, executive director of the Louisiana District Attorney Association, based in Baton Rouge.

But Adams and his counterparts in the criminal defense bar, usually opponents, agreed on the terms at the beginning of the session, then kept it quiet.

“A lot of attention would bring out folks on fringes,” Adams said.

Both sides have been working on the issue for several years. Shortly after the session began, the prosecutors and the lawyers who represent criminal defendants met again. Both sides conceded some points and they hammered out the remaining issues.

“It eliminates lawsuits and appeals,” said state Rep. Joseph Lopinto, R-Metairie. “It’s easy for a defendant to say, ‘If I would have known about that, I would have made a different argument.’ This takes away that ability.”

Many jurisdictions around the state already practice a form of “open files discovery,” but just what information was turned over, and how, differed.

The idea behind HB371 is to provide uniformity and a similar procedure so that a person accused of a crime in a rural north Louisiana parish is treated the same as a defendant in an urban south Louisiana parish, said Lopinto, chairman of the House Committee on Administration of Criminal Justice.

Lopinto’s bill is similar to legislation being pushed around the country by the American Bar Association on the heels of several high court decisions during the past decade, including one from New Orleans, and many bar journal articles advocating for open files discovery.

Several Texas legislators, for instance, applauded when that state passed a similar bill in May, though many in the criminal defense community say that legislation in that state did not allow enough open file disclosure.

Law already requires prosecutors to turn over statements and evidence that would exonerate the defendants.

And the U.S. Supreme Court ruled a half century ago that the accused in a criminal case is entitled to review evidence that could be considered “favorable” and could be “material” to the trial.

A lot of appeals have been filed by convicted defendants claiming that district attorneys improperly defined what was “favorable” or “material.”

HB371 would require that law enforcement turn over all of the witness statements that would allow defense attorneys to see what everyone told police investigators.

It ensures that defendants can see police offense reports and witness statements; the analysis from law enforcement and experts.

Prosecutors can protect the identity of witnesses, if there is fear of retaliation.

The legislation sets up the procedures for how the disclosure takes place.

“Both sides agree that we needed better information on the front end,” Steimel said.

Having access to the information gathered by law enforcement — and being used against defendants at trial — helps lawyers better understand the case and gives them additional avenues to investigate, he said. The transparency allows for more efficient trials and fewer appeals after convictions.

Adams agreed. He added that allowing the lawyers to see what the other side had could also lead to more defendants pleading guilty and avoiding trial altogether.

Adams said the open files discovery should eliminate “ ‘Perry Mason’ moments,’ of surprise when someone else dramatically confesses. It made for good television in the 1950s show, but in real life causes all sorts of legal procedural problems and raises questions about the quality of all of law enforcement’s investigations.

“It’s supposed to reduce that,” Adams said.

The Innocence Project, a New York-based organization that helps investigate and litigate cases after convictions, counted 22 people who were “wrongfully convicted” in Louisiana and Mississippi.

The wrongfully convicted spend an average of 13 and half years behind bars, the Project found.

“There are more exonerations in Louisiana than almost every other state,” Steimel said.

“Wrongful convictions are a term of art,” that does not necessarily equate with factually innocent, Adams replied. Convicted people can be exonerated by a court for a variety of reasons, such as inability to find witnesses years after the crime.

“But that doesn’t matter. If the number is two, that’s two too many,” Adams said. “We ought not to have convictions reversed.”