(020)

TI-IIS IS A CAPITAL CASE

IN TI-IE CRIMINAL DISTRICT COURT·

PARISH OF ORLEANS
STATE OF LOUISIANA

)
STATE OF LOUISIANA, ) No. 472217 "B"
Plaintitr )
v. ) Judge L. Van Davis, Presiding
)
MICHAEL ANDERSON
Defendant )
)
.c::
. '" ~
.. ;
,~=-=.~. rr~I'----
FILED: cl t)( l\0

MOTION FOR NEW TRIAL

COMES NOW, Michael Anderson through counsel and moves this Court pursuant to the

Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 1, Sections

2,3,5,13,14,16,17,19,20,22, and 24 of the Louisiana Constitution, La. C. Cr. P. art. 851 et

seq., and other applicable law, to grant a new trial and to declare La. C. Cr. P. art. 905.5.1(C) and

(I-I) unconstitutional. The defenseri10ves this Court to conduct an evidentiary hearing and grant

a new trial.

OVERVIE\¥

1) Michael Anderson moves for a new trial under the provisions of La C. Cr. P. art.

85 I as detailed and based upon the grounds described below. A contradictory hearing must be

held on the motion and Mr. Anderson has noticed his inlention to present evidence in support of

his motion at that hearing. The court has previously scheduled the evidentiary hearing on the

motion for new trial for February 26,2010.

2) In raising some of the claims in this motion, Mr. Anderson asks this court to

declare La. C. Cr. P. art. 905.5.1(C) & (H) unconstitutional both facially and as applied in this

case.

ARGUlVIENT

I. An injustice was done to MI'. Anderson when the state suppressed 2l videotaped
intcrview with Torric Williams. containing information favorable to defense and
allowed! Tonie Williams to give false testimony ',Jcfol"c the jury.
 771e state suppressed a videotaped interview with Torrie Williams conducted on
July 16, 2007 c

3) Torrie Williams is and was the sole eyewitness the state has to implicate Mr.

Anderson in this crime. The state dismissed. the first indictment in this case because Ms.

Williams had given prosecutors, in particular Michael Morales, too many inconsistent versions

of events and they did not believe her to be credible.' Indeed, the charge had been accepted and

the indictmentsought against the advice of the Violent Offender's Unit at the charge conference.

4) The first indictment in this case was dismissed on July 10, 2007. The next day,

the NOPD conducted a press conference, producing Torrie Williams and lambasting the then

District Att()rney. The previously undisclosed interview with the DA's office was conducted a

few days later, on July 16,2007, At the charge conference to consider reinstituting the charges

Bobby freeman presented the case and indicated that MSi Williams was not credible, the violent

olfender's unit maintained their position that no indictment should be sought. Gaynell Williams

overruled this decision on the basis that a public commitment had been given to present the case

to the grand jury and that this would need to occur.

5)Mr. Anc!erson was .re-indicted and on August 14, 2007 the defense filed and

argued a motion for disclosure of Brcu0;, including a request for, "A copy of any statements

made by Tonie Willianlsto.

.
any
, .
member of the Orleans Parish District Attorney's OLTice,
-

including any applicable notes if no formal statement was taken." ADA De Blanc resisted

disclosure and the court accepted the state's word that it would abide by its Brcu0; obligations.

Throughout the pre-trial proceedings and at trial the defense repeatedly asserted its right to Brac0;

material, requested release of Ms. Williams' grand jury testimony and sought notes of any

interviews between Ms. Williams and the District Attorney's olTice. The state undertook that it

was complying with Brac0; but otherwise, all requests for further discovery relevant to the

present issue were denied. Prejudicial error is now shown in thel'ailure to grant defense requests

for disclosure of the relevant materials. La. C. Cr. P. art. 851 (2).

6) The state relied in its culpability phase presentation on the eviclenceof Ton'ie

Williams and presented her to the jury during her testimony and in closing as a truthful and
2
reliable witness. On' August 26,2009 Mr. Anderson was convicted of five counts of first degree

I The details oflhese earlier versions were not and have not been disclosed to the defense but the defense having
become aware that they exist seeks through compulsory process directed to Mr. Morales, to present evidence of
these inconsistent prior statements at the hearing on the motion for new trial to substantiate a claim for relief under
La. C. Cr. P. art. 851 (3).
2 By comparison, the state in closing sought to discredit Arnika Jone~ on the basis of inconsistencies between her

2
- .- .,
murder. On August 29, 200?the jury returned death verdicts on all five counts. I-Iearing on

motion for .new trial was set for December 11,2009. On December 11,2009 the motion for new
. (

trie).l hearing c1ate was reseUo February 26, 2009.

7) , On Janua:ry 5,2010, ADA Alford provided to the defense for the first time a DVD

containing video footage of a July 16, 2007interview of the state's key witness, Tonie Williams.

The video footage was disclosed pursuant to the state's Brady obligations and ADA Alford

stated that the video had been discovered during the recent office ,move by the District

Attorney'soffice. The defense had not previously been made aware oCthe interview, its contents

or the videotape.

8) The DVO was said to have been copied from a digital v,ideo tape used to record

the interview. TheDVD showed that the OVO provided to the defense had been produced on

December 10, 2009, the day before the first scheduled date for hearing the motion for new trial

and more than three weeks before the video was disclosed to the defense.

9) The video depicts an interview of Torrie Williams conducted by ADAs Freeman,

De Blanc & Morales, along with Oet. Mike Cooney and Chief Claude McCoy. The trial court

has advised thatCooney and McCoy were investigators with the District Attorney's office. The

interview was videotaped by. two cameras and separate audio recordings were made. The

defense has at this time only been supplied with one OVO containing a copy of the recording

from one camera - a recording that is interrupted on a number of occasions and is inaudible in

parts. The state has undertaken to' copy and provide the Qther recordings of the interview but has

not yet done so. Mr. Anderson has reserved the right to supplement this motion upon receipt of

this additional material.

10) The videotaped interview now disclosed contains numerous statements from

Torrie Williams directly contradictory to her testimony at trial as well as a wealth of previously

unavailable impeachment - it establishes that Ton"ie WiIliams was physically unable to witness

what she claimed to have seen, because she was not at the crime scene until two hours after the

olfense, has vision problems, had been drinking and did' not have available street lighting. The

Orleans District Attol'ney's Office allowed Ms. Williams' false testimony at trial to go

uncontradicted and failed to provide the videotape to the defense ata time that would give the

testimony before the grand jury and her testimony at trial. It is entire:ly Ul1;ust that the state were able to take
advantage of having the prior statement of Enrika Jones while at the same time suppressing the prior statement of
Ton'ie Williams. The state further argued that any testimony by Raymond Cobbins or Mabel Cobbins that
contradicted Tort'ie Willaims' testimony was motivated by either fear of Michael Anderson, or devotion to his
family.

3
defense a reasonable opportunity to make use of it in the defense case.

The videotape of the pre-indictment intervieH' was at aU times disclosable under

La. C. Cr. P. art. 718 and Brac0; as lveU as forming the basis for the state's
Giglio/Napue violation when Ms. Williams test?fied at the suppression hearing
and at trial

11) Due Process requires the state to disclose material favorable to an accused and a

breach will be found irrespective of the good faith or pad faith of the; prosecution. Brac0; v.

Admylond, 373 U.S. 83 (1963). The state's obligation of disclosure is not limited to the provision

of material upon the request of the defendant. United States v. Agurs, 427 U.S. 97 (1976).

Further, the state's obligation extends beyond the bounds of the district attorney's office to others

acting on the government's behalf Kyles v. rVhitley, 514 U.S. 419, 437 (1995) (the prosecutor is

responsible for "any l~lVorable evidence known to the others acting on the government's behalf in

the case, including the police."); Strickler v. Greene, 527 U.S. 263,275 (1:999) (same). A l:ailure

by the state to correct false testimony olTered by a witness in the trial also violates the Due

Process Clauses of the Louisiana and Federal Constitutions. Napue v. .Illinois, 360 U.S. 264,

(1959); Giglio v. United States, 405 U.S. 150 (1972).

12) The Due Process requirement of disclosure is of constitutional dimension and

necessarily prevails over statutorily created privileges. See, fin' example, Davis v. Alaska, 415

U.S. 308, 320 (1974) ("The State's policy interest in protecting the confidentiality of a juvenile

offender's record cannot require yielding of so vital a constitutional right as the etlective cross-

examination for bias of an adverse witness.")

As the Delma Banks case demonstrates, notes of prosecutorial witness preparation

sessions are susceptible to Brac[v disclosure, even though they would otherwise constitute work

product. Banks v. Dretke, 540 U.S. 668,692 (2004)(remand for consideration of Brac0; claim

relating to, inter alia, prosecutor's witness preparation session) further proceddings Banks v.

Thaler, 583 F.3d 295,310 (5th Cil'. Tex. 2009). As the Fifth Circuit noted in Dickson v.

Quarterman, 462 17.3d 470, 480 (5th Cir. Tex. 2006):

At least one commentator states: "Because Bradyis based on the Constitution, it

overrides court-made rules of procedure. Thus, the work-product immunity for
discovery in Rule 16(a)(2) prohibits discovery under Rule 16 but it does not alter
the prosecutor's duty to disclose material that is within Brady." 2 CHARLES
ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE §254.2 (3d ed.
2000). Although some j:\.lrisdictions recognize that "opinion work product" may
enjoy sOl~le protection:, see, e.g., Williamson v. Jvloore, 221 F.3d 1177, 1182 (lIth
Cir, 2000), the State agreed at oral argument that the proseclltor's assertion of
work product in this case was "obviously wrong." (

4
Id. This has been the general-:- and uncontradicted -- rule throughout the federal and state
courts. 3
13) The work product protection afforded to the prosecutor's internal documents III

Louisiana exists by virtue of La. C. Cr. P. art. 723. However, that article explicitly makes the

work product exception subject to the disclosure requirements contained in La. C. Cr. P. art. 718.

La. C. Cr. 'P. art., 723 ("Except as provided in Articles 716, 718, 721, and 722 ... ")

14) The constitutional requirement to disclose: favorable material finds expression in

La. C. Cr. P. art. 718, which requires disclosure of documents "favorable to the defendant and

which are material and relevant to the issue of guilt or punishment".

15) The effect of the statutory provisions is to require disclosure of favorable

information even where it would otherwise be District Attorney work product:

When these two articles are read together, it is clear that the State need not
disclose its internal documents, i.e. its work products, and the statements of
witnesses unless such things (1) are material and exculpatory, as determined by
Brady and its progeny; (2} are intended for use as evidence; or (3) "were obtained
from or belong to the defendant." See State v. Dunn, 94-776, pp. 6-7 (La. App. 5
Cir. 2/15/95), 651 So. 2d 1378, 1383.

State v. Lee, 2000-0831 (La. App. 4 Cir. 2000); 767 So. 2eI 97, 100.

16) ; In any event, even in proceedings where Due Process and the special duties of

prosecutors do not apply, the work product doctrine does not extend to material in the possession

of one patty that is essential to the preparation of the other party's case, whether admissible or

not and whether' limited to the purposes of impeachment or corroboration or not. Hickman v.

taylor, 329 U.S. 495, 511 (1947). In any event, a videotape of a preincli'ctment interview taken

for illvestigative purposes and not containing memoranda or notes of the attorney's mental

processes does not qualify under the work product rule.

Reliefmust be granted where there has been a Brady or Giglio/Napue violation,

lvhere l10tlvithstanding the absence q( any such liiolation a new jUly hearing the
newly disclosed evidence lvould likely reach ad(fferent verdict as to guilt or
penalty, or, in any event where the ends (djustice would be served by the grant of
a new trial '

17) A conviction obtained through use of false evidence, known to be such by

representatives of the State, must fall under the Fourteenth Amendment and the same result

3 The Eleventh Circuit Court of Appeals, for installce observed, "Other courts and commentators have assumed that
nrac0J requires disc!osure."AJincey v. Heacl, 20G F.3d I lOG, Il33 (I i th Cir. Ga. 2(00) citing Castleben:]! 1'. Crisp,
414 F. Supp.945, 953 (N.D.Okla.197G) ("The 'work product' discovery rule cannot, of course, be applied in a
manner which derogates a defendant's constitutional rights as propounded in Brady."); see also United States v.
NYNEX Corp., 781 F. Stipp. 19, 25 (D. D.C.l991) ("Cases on this question, albeit without much discussion, suggest
that internal materials possibly constituting work product may not aU,tomatically be exempt from Brady
requirements.") (ciLing cases); United States v; Goldman, 439 F. Supp. 337, 350 (S.D.N.Y.1977) ("Of course, if
[work product] material be ofa Brady nature, then itl11ust be produced."); Franklin v. State, l66 Ga. App. 375, 304
S.E.2d 50 i, 504 (l983) ("~Vork product of the state [is] not subject to compelled discovery except to the extent that
such letter may be 'exculpatory and subject to disclosure uncler Brady.").

5
obtains when the State, although n9t soliciting hllse evidence, allows it to go uncorrected when it

appears. Napue v. Illinois, 360 U.S. 264, 269 (1959). The same result;applies even where the

false testimony goes only to the credibility of the witness. lei.; A new trial is required if "the

false testimony could ... in any reasonable likelihood have affected the judgment of the jury ...

." lei. at 271; Giglio v. United Slales, 405 U.S. ISO, 154 (1972). The violation of the defendant's

due process rights is compounded when the state, as it did here, capitalizes on the testimony in

its closing arguments. United Slales v. Sw?fllippo, 564 F.2d 176, 179 (5th Cir., 1977)(Reversing

de1endant's conviction). The state bears the heavy burden of establishing that the presentation of

false testimony had no ertect on the judgement of the jury beyond a reasonable doubt.

18) Where the states does not present or allow to be presented false evidence but

instead suppresses favorable ,information, whether relevant as impeachment evidence or

otherwise, a new trial must be ordered when the government's evidentiary suppression

"undermines-confidence in the outcome ofthe tria!''' Kyles v. Whitley, 514 U.S. 419, 434 (1995)

eiling United Stales v. Bagley, 473 U.S. 667, 678 (1985). The question is not whether the

defendant would more likely t\lan not have received a different verdict with the evidence, but

whether ill its absence he received a fair tria!'

19) Even where there has been no improper suppression of the evidence, where it is

new evidellce not previously available a new trial must b.e ordered where a new jury hearing the

case in the context of the new evidence would likely reach a dillerent result at guilt or penalty

phase. La. C. Cr. P. art. 851 (3); Slale v. IYalls, 2000-0602 (La. 01114/03); 835 So. 2d 441.

Where the evidence of guilt contains significant cOlltradictions and discrepancies, newly

discovered evidence of relatively minor importance might be sufficient' to create a reasonable

doubt. Slate v. Hammons, 597 So. 2d 990, 998 (La. 1992).

20) Even if'there has been no improper suppression and it has not been established

that the new evidence would likely result in a different outcome at guilt or penalty phase, a new

trial may be ordered where, in the circumstances, the ends of justice would be served by the

grant of a new tria!. Slale v. A1iller, 923 So. 2d 625, 627 (La. 2006). In Slale v. Miller, 923 So.

2d 625,627 (La. 2006) the Louisiana Supreme Court upheld the granting of a new trial by the

trial judge even where the Fifth Circuit Court of Appeal had reversed that decision. A new trial

was granted in that case following an apparent Brody violation in which,the state had failed to

disclose cl'iminal history information in relation to a number of witnesses. The Fifth Circuit

6
Court of Appeal reversed the grant of a new trial on the bClsis that the suppression a f the evidence

did not sufficiently undermine confidence in the verdict of the jury to justify relief The

Supreme Court reinstated the trial court's ruling, holding that regardless of whether the strict

requirements of a Brac01 claim wete met, the trial court had found that the ends of justice would
4
be served by the granting of a new trial pursuant to art. 851 (5).

Torrie Williams lied on the witness stand nbout when and under HIlwt
circumstances she lefi the hotel foom, the Orleans District Attorney's Office knew
it andfailed to correct the false testinlOl1)1

21) In her testimony .at trial, Ms. Williams stated that Raymond Cobbins left the hotel

room at about 2:30 Qr 3am, that he never came back and that she left tolook for him at about

3:30am. She testified that she searched for him in a crack house before heading to the Sixth

District. She testified that it was then that she observed the shooting.

22) In the suppressed interview with the District Attorney's, office, Ms. Williams

explicitly states that Raymond Cobbins left the hotel room at around 2,:30 or 3am but that she

remained at the hotel room until he returned at about 4mm She states on the video that Raymond

returned with a man named Thomas and asked Torrie for $40, which she provided so that

Raymond could buy drllgs from Thomas. 5 She states on 'the video that H..aymond then left again

at about 5am and that she knows it was that time because the 5am news broadcast \vas on the

television. She states bn the video that she dozed and the left the hotel:room at about Gam to

look for Raymond. She describes walking to the crime scene and witnessing the shooting but

does not recount going to a crack house to look for R.aymond.

23) In her trial testimony, Ms. Williams describes arriving at the crime scene at about

4am, that the streetlights were on and that she saw the shooting at that time. On the videotape

she describes arriving at the crime scene at about Gam, that there were no streetlights but that the

sun was coming up arid this is how she could see and that she saw the shooting at this time.

Following the revelation of the videotape, enquiries with the U.S. Navial Observatory and an

expert astronomer 6 have established that sunrise on the day of the shooting was bet\veen 5:58am

and 5:59am on the morning that the shooting occurred.

4 The Supreme Court emphasized that regardless of any 13rac(I' claim, the trial court had become convinced during
the hearings on the motioli for new trial that one orthe state's principal witnesses was "someone who is accustomed
to lying." Id.
5 So, contrary to her trial testimony in which she sought to distance herself [rom Raymond's drug Lise, including him
gOillg into another room, her suppressed video statemeilt identifies her participating in the (unprosecuted) felony
oflense of purchasing the crack cocaine. Obviously, this would be valuable impeachment evidence that was not
disclosed by the state and "fuither supports lIie claim for relief.· ,:
6 Dr. Daniel Purrington, a professor of physics and astronomy will provide evidence of the timing of sunrise in New
Orleans on the day of the shootings.

7
 24) Ms. Williams told a series of 11at out lies under oath abOlft her movements and

Raymond Cobbins' movements, the Orleans District Attorney's Office knew they were lies and

did nothing to correct them. Ms. Williams testified at trial that she leil the hotel room at a time

that allowed her to reach the crime scene at the time we know the shooting happened when on

the videotape she had provided a detailed account of her movements that put her at the crime

scene at about 6am, a tiine long after the shootings had occurred.

·25) Given the detailed account on the videotape, the description of Thomas the drug

dealer, the confirmation of the timing liOin the commencement of the Sam news, Ms. Williams'

strong math skills? and the observation of sunrise at the time of the shooting, Ms. Williams

statements on the video cannot be dismissed as a simple error as to the time, nor they can be

8
dismissed as not being sulTiciently related to her core testimony.

26) It'has been the defense case throughout that Ms. Williams has been lying about

being present at the scene at the time of the shootings. Ms. Williams' account, which in all

respects places her at .the scene.ailer the shootings except in as much as she claims to have seen

the shootings, goes to the heart of the question of whether she was really there or not. Critically,

Ms. Williams account of the timing of her movements matches up with the defense case

presented at trial - that she did not leave the hotel roonl until about 6am and that she had not

been present at the time of the shooting. State v. Watts, 2000-0602 (La. ,01/14/03); 835 So. 2d

441 (Abuse of discretion not to grant new trial in light of new evidence, particularly where the

new evidence matched' .up with the defense case at trial). In Watts the Supreme Court placed

particular reliance on the fact that the new evidence was bolstered by an account previously

given by the defendant and relied upon by the defendant at trial. Raymond Cobbins, Keshawn

Cobbins, Jeannette Cobbins and Mabel Cobbins all gave evidence in one form or another that

challe!lgedMs. Williams account of her whereabouts and Raymond Cobbins was clear that Ms.

Willi,ams did not leave the hotel room and go to the crime scene until approximately 6am. The

state attacked Mr. Cobbins' credibility in cross-examination and closing while at the same time

suppressing Ms. Williams' statement that she did not go to the crime scene until 6am.

27) At best~ the O1'1eans Parish District Attorney's Oftice suppressed material

evidence favorable to the defendant and a new trial is required under Brady and its progeny.

7These are discussed as supporting her accurate assessment .of the tilne of events during the videotaped interview.
8 Notably, the state relie.d heavily ouMs. Williams iu closing and repeatedly olTered the jury the mantra in its
closing that the 'devil is in the details'. 111 these circumstances it ,"ould be insupportable to suggest that Ms.
Williams' inconsistencies relate only to details and are therefore unirnportant.

j
More accllratelY,however, the Qrleans District Attorney's Office violated not only Brady but

also Giglio and Naplie when it allowed Tqrrie Williams to give false testimony and failed to

correct the falsehoods. Tonie Williams was the sole eyewitness and fundamental to the state's

case. Because her false testimony likely affected the judgment of the new trial, because the

newly disclosed evidence undermines confidence in the verdicts, because a jury exposed to this

evidence would likely l'eturna different result and because the ends ofjustice would be served by

granting a new trial,a new trial should be ordered.

28) Mr. Allderson shows prejudicial error in the court's failure. to require disclosure of

the prosecution's interview oLMs. Williams (La. C. Cr. P. 851(2); new and material evidence not

previously available that would likely have changed the olltcomeatguilt pr penalty phase (La. C.

Cr. P. art. 851(3); a prejudicial error or defect in the trial not known,to the defense prior to

verdict (La. C. Cr. P.'art. 851(4); and, that the ends of justice would be served by the grant of a

new,ii"ial (La. C. Cr. P. art. 851(5).

Ton'ie rVi!liams. lied on the witness stand when she said she was not drinking at
the club, the Orleans District Attorney's Office knew it and failed to correct the
false testimony·

29) In her testimony at trial Ms. Williams was asked by the prosecutor whether she

had anything to drink at the club and stated that she did not and that she, only had one daiquiri

prior to going to the club.

30) In the suppressed interview with the District Attorney's oHice, Ms. Williams

explicitly states that she did drink at the Club and states that she had Hennessy (this is an 80

proof cognac). Following the revelation of the previously suppressed videotape, further

investigation has identified that Raymond Cobbins observed. Ms. W,illiams to have 3 or 4

alcoholic ch)nks at the club and is now available to present that evidence..

31) Ms. Williams told a nat out lie under oath on the witness stand. The Orleans

District Attorney's 01Tice knew it was a lie but did nothing to correct it. As this is an

identification case involving a single eyewitness, both the credibility and reliability of Ms.

Williams were absolutely central to the state case. The previously suppressed evidence portrays

Ms. Williams as a pedurer willing to lie to improve the credibility of her observations and as

someone who was likely under the intluence of alcohol at the time of her observations.

32) ; Mr. Anderson shows prejudicial error in the court's failure,Jo require disclosure of

the prosecution's interview of Ms. Williams (La. C. Cr. P. 851 (2); new and material evidence not

9
previously available that would likely have changed the outcome at guilt or penalty phase (La. C.

Cr. P. art. 851 (3); a prejuclicial error or defect in the trial not known to the defense prior to

verdict (La. C. C~·. P. ad. 851(4); and, that the ends of justice would be ~erved by the grant of a

new trial (La. C. Cr. P. art. 851 (5).

Ton'ie fVilliall1,<; lied 011 the witness stand when she said that/here was street
I

lighting at the scene and that this was lim!' she could see All'. Anderson, the
Orleans DistrictAttorney's qffice knew it ol1d.fi.liled to correct the false testimony

33) . At trial, Torrie Wil1iamstestified under oath that there was street lighting on

Daneel and Josephine' streets. Transcript 8/20/09 at p. 11. ("When you first glanced and saw the

person that you mentioned as Michael Anderson, was there any.lighting in that area? - - - They

had light on Josephine Street, the street that I turned on~ and they had light on Danneel Street;

the street light.")

34) In her previously undisclosed videotaped statement, Ms: Williams was asked

about the street lighting and· stated that "they had no street lights" but that "it was getting

daylight".

35) Ms. Williams told a Hat out lie under oath on the witness stand. The Orleans

District Attorney's Office knew it was a lie but did nothing to correct it. As this is an

identification case involving a single eyewitness, both the credibility and reliability of Ms.

Williams were absolutely central to the state case. The previously suppressed evidence portrays

Ms. Williams as a peljurer willing to lie to improve the: credibility of her observations and as

someone who likely did not have an opportunity to make the observations she claims to have

made. If: on the othei· handMs.Wil1iams' trial testimony that there were street lights was true as
a matter of fact, the videotaped statement would stil1 represent devastating impeachment. Her

statement that there were no streetlights would undermine her claim of having been at the crime

scene atnigj1ttime aI~dcorrobprate her own claim and that of Raymond Cobbins that she did not

arrive until aller dawn (when the streetlights would not have been il1umin~ted).

36) I'vlr. Anderson shows prejudicial error in the court's failure to require disclosure of

the prosecution's interview of Ms. Williams (La. C. Cr. P. 851 (2); new and material evidence not

previo~lsly availablethat would likely have changed the outcome at guilt or penalty phase (La. C.

Cr. P. art. 851(3); a prejudicial

. . error or defect in the trial not known to the defense prior to

verdict (La. C. Cr. P. art. 851(4); and, that the ends of justice would be served by the grant ofa

new tripJ (La. C. Cr. P. art. 851(5).

10
 Ton'ie IYillia17/s lied 011 the witness stand when she said that she was not too good
lvith math .and had never seen a map like the one shown her in court before. the
Orleans District Attorney's qflice knell' it ondfailed to correct thefcllse testimony

37) At trial, the Orleans Parish District Attqrney's Office sought to insulate and

rehabilitate Ms. Williams' inconsistent and unreliable testimony by having her agree that she

wasn't very good at math (p.SS) and that she had never had to read a maplike the one shown to

her in court before (p.88). Indeed, Ms., Williams offered in her own defense that she was not

familiar with a map (p.42-3).

38) In her previously;undisclosed videotaped statement, Ms. Williams states that she

was good at math, was an A student, really liked math aJld was good in math and science. She

was also shown a ma by the prosecutors and worked with the Google m~p for some time with

them. 9

39) Ms. Williams told \lat out lies under oath on the witness stand. The Orleans

District Attorney's Office knew they were lies but did nothing to correct them. Indeed, the trial

prosecutor specifically asked questions about her knowledge of math and maps that produced

lalse testimony and did so in an effort to improve Ms. Williams' credibility. As this is an

identification case involving a single eyewitness, both the credibility and reliability of Ms.

Williams were absolutely central to the state case.

40) Mr. Anderson shows prejudicial error in the court's failure to requireclisclosure of

the prosecution.'s interview of Ms. Williams (La. C. Cr. P: 851(2); new andlilaterial evidence not

previously available that would likely have changed the outcome at guilt or penalty phase (La. C.

Cr. P. art. 851(3); a prejudicial error or defect in the trial not known to the defense prior to

verdict (La. c.er. P~ art. 851(4); and, that the ends of justice would be served by the grant o1'a

new trial (La. C. Cr. P. art. 851 (5),

The state suppressed fCll·orable iJ?fhrmation elicited during the videotaped

interview that Tonie IYil!icmis has received medical advice ,{T-0l71 her eye doctor
that she needs eye glasses and that she was not wearing glasses on the night (?l
the incident

41) At the trial, Ms. Williams purported to make an identification of Mr. Anderson on

a street at i1ighttime a distance of about 50-60' in a brief encounter during which she is

attempting to duck down an alley. She claims to have 1l.1et Mr. Anderson only once before this

encounter - earlier that same evening in a very brief observation inside a nightclub. A motion to

9 The trial court has erroneously refused to disclose the map on the basis that it is work product (even though it
contains onIy the witness' markings and not attorney thought proces~es). ADA AI ford !lad declared that he would
look for (he mcip and hand it over ifhe found it but then stated that the map could not be found. The trial court then
reviewed the file and found the map but declined to hand it over to the defense.

11
suppress identification was condu,cted in this case and Ms. Williams testified at the hearing on

January 23, 2009, where her capacity to observe was challenged.

42) . Unknown to the defense either at the time of the suppression hearing or at the

time of trial was the fact that Ms. Williams previously been to an eye doctor who had told her

that she needed glasses. 10 Ms. Williams tolel the Orleans Parish District Attorney's Office this in

the July 2007 videotape.but the state failed to disclose this information to the defense until alter

the trial, conviction and death verdicts.

43) In 1998 the Louisiana Supreme Court reversed the conviction and death sentence

of.Shareef Cousin as a result of an Orleans Parish prosecutor improperly using prior statements

for the truth of their contents. However, in that same case the. prosecutor had also failed to

disclose the statement of an identifying eyewitness that she was not wearing her contacts or

glasses. In reversing the conviction the Supreme Court did not need .to reach the issue but

observed in a footnote that the evidence was obviously exculpatory and clearly should have been

produced. Siale v. Cousin, 96-2973, (La. 4/14/98) p. 2 n. 2, 710 So. 2d 1065 at 1066 and 96-

2973 p. 17 n.8,710 So. 2d at 1073. Subsequently, the Supreme Court made a formal finding that

the trial prosecutor had violated Rule 3.8(d) of the Rules of Professiorial Conduct and ordered

that he be suspended [rom practice for three months, such suspension to be suspended for a year.

[nrc Jordan, 04-2397 (La. 06/29/2(05).

44) The prosecution of Shareet' Cousin was conducted by the Orleans Parish District

Attorney's Office and the disciplined prosecutor was an ADA in that office.

45) In light of this history it is remarkable that the Orleans District Attorney's OHice

has once again violated Brady anel in an uncanny mimicry of Jordan, the violation includes

suppression ofa statement by the sole eyewitness that she was not wearing glasses that her eye

doctor had told her she needed:

46) In addition, as a result of the recent post-verdict disclosure, the defense has

conducted specific investigation directed to identifying the treatment and treating physician for

Ms. Williams. Thelt investigation is ongoing but has disclosed the fact that Ms. Williams has

been assessed by social security as having a disability related to her mental health/capacity and

has been receiving benelils for that impairment. Raymond Cobbins' and Jeanette Cobbins

provide evidence that Torrie Williams was getting a check for mental health problems.

10 ['vIs. WilliaIilS also says in the tape that she does not really need glasses but this does 'nothing to dispel the
favorable impeachment value of the statement, any more than the other statements changed the exculpatory nature of
the statements in In re Jordan, 04-2397 (La. 06/29/2005).

12
Investigation into the evidence of Ms. Williams' disability is ongoing and Mr. Anderson will

seek the benefit of compulsory process and further discovery from the state to develop this area.

47) Mr. Anderson shows prejudicial error in the court's failur~ to require disclosure of

the prosecution's interview of Ms. Williams (La. C. Cr. P. 851(2); new and material evidence not

previously available that woulcllikely have changed the outcome at guilt or penalLy phase (La. C.

Cr. P. art. 851(3); a prejudicial error or defect in the trial not known to the defense prior to

verdict (La. C. CL P. arlo 851(4); ancl, that the ends of justice would be sE1rved by the grant ofa

new trial (La. C. Cr.P. art. 851(5).

The state suppressed./clvorable evidence when itfailed to cUsclose numerous other

favorable piecesol il?!C)rmation disclosed by T'orrie H/illiams in the vhleo
interview and failed to disclose the valuable impeachment provided by the
oJ/1ission./i'oJ/1 the detailed version on the video (~lmatters she testf/ied to at tdal

48) In her trial testimony, Torrie Williams claimed that duri,ng a phone call from

Louisiana State Penitentiary, Mr. Anderson had asked her to get on the stand and say he didn't

do it and that he would arrange to give her money through Western Union. This phone call was

also discussed in detail in the previously suppressed interview with TorrieWilliams in July 2007.

However, during the suppressecl videotaped statement ~.v1s. Williams does not claim that Mr.

Anderson offered to give her money. Instead" she claims that he saiel that the police woulclnot

mess with her ifshesaid he didn't do itancl that if they tried to put her injail for it that he would

stand up in court and tell everyone that the police were trying to make her say these things

against him. Not only is there no mention of the offer ofmoney but her version in the videotape

of what is being otTered is support in resisting police attempts to coerce her testimony. The

Orleans Parish District Attorney's OtTice knew that Ms. Williams had not talked about an offer

of money in her July 2007 video statement and knew- that this could be used to impeach Ms.

Wi lliams.However, the state did not cl isclose the earl ier' version provided by Ms. Williams and

instead relied in closing argument on the allegation that J\!I.r. Anderson had offered Ms. Williams

money.

49) In her trial testimony, Ms. Williams denied receiving any assistance or money

from anyone other than witness protection money in the form of bills being paid etc. In closing

the state emphasized that she had received no money other than her expenses incurred as a result

of being relocated. In her videotaped statement Ms. Williams disclosed that she had, in fact,

actively sought reward money from Crimestoppers for her information. This fact was not

disclosed to the defense who, the state knew all too well,were suggesting that Ms. Williams may

13
have been lying for financial reward. Instead of disclosing the information about Crimestoppers,

the prosecution asked a series oLquestions designed to rebut any suggestion that Ms. Williams

had a financial motive to lie and approached the closing in the same way. In the context of the

information that was known to the state and the manner in which Ms. Williams testified, the

state's questioning and Ms. Williarns' answers were tantamount to a nat out lie and represent a

Napue/Giglio violation. Even if not rising to the level of false testimony per se, given the nature

of the state and defense cases in relation to Ms. Williams, the state's failure to disclose the fact

that Ms. Williams had actively sought Crirnestoppers revvard money violated its obligations

under the Cod~and the Due Process Clauses of the state and federal Constitutions.

50) In the course of the previously undisclosed videotaped statement Ms. Williams

110t only _stated that Michael Anderson was holding the murder weapon in his right hand but also

demonstrated her alleged observation by acting it out. What Ms. \Villiarns did not know is that

Michael Anderson is left handed. It is true that Ms. Williams had claimed in her July 2006

statement to the NOPD that rVlr. Anderson was using his right hand but at trial Ms. Williams

defused any impeachment available from this earlier statement declaringthat she was not good at

telling her left from her right. The videotape however, showed Ms. Williams acting out which

hand the gun was in, rather than asking her to correctly label her observation. That portion of the

video should have been available to the defense for impeachment of Ms. Williams' and would

have survived the attempt to insulate against such impealchrnent by stating that MSs. Williams

was not good at knowing her left from her right.

51) Mr. Anderson shows prejudicial error in the court's failure to require disclosure of

the prosecution's interview of Ms. Williams (La. C. Cr. Pl 851(2); new anclmaterial evidence not

previously available that would likely have changed the outcome at guilt or penalty phase (La. C.

Cr. P. art. 851(3); a prejudicial error or defect in the trial not known to the defense prior to

verdict (La. C. Cr. P.-art. 851(4); and, that the ends of justice would be 'served by the grant of a

new trial (La. C. Cr. P. 'art. 851 (5).

U. An injusticc was donc to thc dcfcndant ""hcn the jury wel'c prevented fl'om hearing
the cvidence of thc exculpatOl'y eyewitness, Hcrman McMillan

Herman lYfcMillan was an eyewitness who had previously ident(jied Telly

Hankton as the true killer in this case

52) On November 1, 2007, FBI Special Agents interviewed an eyewitness to the

murders, I-Ierman McMillan, who told the FBI that he was at the scene the morning of the

14
murders, lb~lt he saw who killed the five young men, thatit was not Michael Anderson, and that

the r~aI. killer is Telly Hankton "a.k.a. RED, <1.k.a. \VILD, a.k.a. THIRD." The FBI went to

Texas to find and interview Mr. McMillan aner developing evidence from another source that

Mr. McMillan
, ;
waso\Jserved atth~
.
crime scene firing a \-veapon in the direction of the incident.

Mr. McMillan told the FBI that he was standing on the northwest corner of Josephine and

Saratoga, just down the street from the murders, when he, saw an SUV with the five young men

inside. The driver,Warren Simeon, stopped when he saw Mr. McMillan, Mr. McMillan had a

conversation with one of the victims in the back seat, anel then the car drove on. When the car

stopped on Danneel Street at the corner of Josephine, Reggie Dantzler got out of the SUV and

stood on the driver's side.

53) Mr. McMillan then saw Telly 11ankton walk. to the driver's side of the car, shoot

Reggie Dantzler and immediately turn and shoot Mr. Simeon. The SUV began to roll slowly

through the intersection as Hankton walked along and continued shooting into the car. The SUV

crashed and came to a stop. Mr. McMillan then fired a hand gUll several time at Telly Hankton as

l-Ial1kton lled the scene.

54) The state has never meaningfully challenged the fact that Mr. McMillan was on

the scene,thatmorning.
. ,
In fact,. as the NOPD supplemental report discloses, less than a month
. - ~

after the murders, arid before M1'. Anderson was even arrested, lead detective Jeffrey Lehrman

interviewed witness Calvin Grayer who said that he had :seen I-Ierman McMillan firing shots in

the direction of the corner ofJosephine and Dannee! the morning of the murders.

55) The evidence at trial also established that Mr. McMillan was on the scene that

morning. At trial, the' defense presented this same witness, Calvin Grayer, who repeated his

account for the jury. Mr.Grayer testified that on June 17, 2006, he was at his home at 2020

Saratoga, which is .less than a block from Josephine Street and less than two blocks from the

scene of the murders. Looking down the block but unable to see the actual crime scene, he saw

I-Ierman McMillan. Herman McMillan, according to Calvin Grayer, was in a position to look

directly at the scene of the shooting. In response to the sounds of gunshots coming from the

scene of the crime, Mr. McMillan fired shots in the direction of where the murderer would have

been.

50). . Herman McMillan's account is corroborated by the physical

, findings. The

physical layout of the scene, the position of the SUV, and tbe positions of the victims are all

15
consistent with Mr. McMillan's account. The SUV had crashed into a pole, but not, apparently

at a high rate of speed. , 'rhe driver, Warren Simeon, was shot from the driver's side. Reggie

Dantzler was outside of the SUV when police arrived on the scene, at the precise spot where Mr.

McMillan indicated he would have been standing when the SUV started rolling.

57) It should also be noted that numerous ofthe Crimestopper's tips disclosed for the

first time at trial implicated Telly 1Iankton, that in recent court documents he has provided an

address of 1920 Josephine Street and that he is rumored to be associated with the victim of the

May 1, 2006 attack that WS\S said by Police Chief Warren Riley to have provoked the attack on

the victims in this case.

58) Finally, Mr.JvlcMillan has neither sought, received, nor expected any benefits

from the FBI in exchange for his testimony, and his account is backed up entirely by other

statements that witnesses gave to the FBI. On October 23, 2007, the same special agents

interviewed Corey Oliver, an eyewitness who (1) confirmed that I-lerman McMillan was out

there that day; (2) confirmed key details in Mr. McMillan's account; and (3) con1irmed that Telly

Hankton was the actual killer. On October 25, 2007, the FBI interviewed another witness

Ronnie Jolmson, who was driving down Danneel Street as the shooting took place. Mr. Johnson

confirmed that there were individuals standing in the positions where both I-Ierman McMillan

and Corey Oliver would have been standing. Id.

59) All of these factors ~ the investigation by the NOPD, the testimony at trial, the

physical evidence at the scene, and the background investigation by the FBI - corroborate the

account that Mr.McMillan gave to the FBI in which he cIaimedthat he \vas an eyewitness to the

murders.

The state. improperly preyented the jUly .ft'om hearing the testimony q{1Jerman
fvlcAlillan by threatening him with prosecution ({he testUied

60) Immediately after the defense presented the testimony of Calvin Grayer,

establishing that I-lerman McMillan was standing one block from where the shooting happened,

the defense called Mr. McMillan to the stand. Aller the defense called his name, ADA Kevin

Guillory, addressed the Court.

61) In addressing the Court - three years ailer a witness told Detective Lehrman that

Mr. McMillan fired a gun that morning, twenty one months after Mr. McMillan first spoke to the

FBI, and twenty months alter the NOPD was made aware of Mr. McMillan's inculpatory

statement to the FBI - Mr. Guillory announced that the state intended to prosecute Mr. McMillan

16
(I"he testified for the defense:

Your Honor, I'm advising the Court, as ,:veil as the Defense, that if they intend to
call Mr. I-Ierman McMillan, and if he intends to' testify in accorclance with the
statement that he previously gave, that he needs to have an attorney:

Mr. Herman McMillan. was coilVicted of Possession of Cocaine in 2003. II" he

takes the stand and admits the possession of a firearm, and firing that firearm
under oath, he will be charged with Possession of a Firearm by a Convicted Felon.
Thus he may be incriminating himseU~ and thus he may have a Fifth Amendment
Priviiege.

Transcript, August 22, 2009, p. 1 (emphasis added).

62) Mr. McMillan, under threat of prosecution by ADA Kevin Guillory, invoked his

Fillh Amendment privilege and declined to testif~'.

63) From the tilne that NOPD first learned of the statement that Mr. McMillan made

to the FBI to the moment he was called as a witness, the state had never shown any interest in

prosecuting him at all for possessing a handgun on· the morning of the shooting. At the very

moment his name was called, the state made clear on the record that their decision as to whether

to prosecute, him hinged on his decision about whether or not to testify.

64) Oddly enough, qfter ADA Guillory threatened anel intimidated Mr. McMillan into

invoking his privilege, and qfier Mr. McMillan had already invoked his privilege not to testify on

the record, the State of Louisiana suddenly came to Mr. IVlcMillan's defense. Moments after Mr.

McMillan. cfeclined to testify, Mr. Anderson's counsel argued that the FBI report containing Mr.

McMillan's: statements was admissible as a statement against penal interest. District Attorney

Leon Cannizzaro then appeared in court in order to announce that Mr. McMillan had nothing to

worry about aner all- his statement, according to Mr. Cannizzaro, was entirely exculpatory and
I
not worth prosecuting, :because he clearly used his weapon in defense of the five young victims

in this case:

MR. CAN lZZARO:

As I read this statement, Your HOllor, I cannot discern any aspect ofthis statement
which in fact incriminates this particular witness, Mr. McMillan, under any
scenario.

Keep in mind, if he in fact is firing a weapon in defense of himself and/or others,

that is not a crime, and therefore not incriminating.

In aclclitionto that, if Your Honor finds that he is in possession of a weapon, and.

because of his status as a convicted felon, will be in violation of the 95.1 Statute, I
suggest to the Court, also, that the law of Louisiana is such that even though a
person may be a convicted felon, he has the right to defend himself under
circumstances in which any other person could ,normally defend themselves or
others, and thereiore possess a firearm under those circumstances.

So he may not be in fact incriminating himself under either the 95.1 Statute, or the

17
 statute of sel f defense..

TransGript, August 22, 2009, p. 43~44.

65) The import of this chronology of events could not be clearer. For twenty-one

months alter making this inculpatory statement to the FBI, Mr. McMillan indeed had nothing to

worry about. The moment he was announced as a witness for the defense, it was made clear to

him that he would be prosecuted "(t' he chose to testify. The moment he chose not to testify,

District Attorney Cannizzarro submitted to the Court that he had done nothing wrong \vhen he

possessed and brandished a gun that morning. True to its word, the state has not sought to

prosecute Mr. McMillan after he bowed to their threats and asserted his rights.

66) Michael Anderson was denied his right to compulsory process and to present a

complete defense when the government and the court instructed a key defense witness that he

would J~lce state and federal charges if he testified according to his statement to FBI
th
investigators. The silencing of I-Ierman McMillan violated Mr. Anderson's rights under the 5 ,

lh th
6 and 14 Amendmehts. In Webb v. Texas, the court helel that a trial court's warnings of a

defense witness about the dire consequences of peljury violated a defendant's right to call

witnesses to his own defense. 409 U.S. 95, 98, 93 S. Ct. 351, 34 L. Ed. 2d 330 (1972). As the

court stated in reversing the defendant's conviction:

The fact that [the witness] was willing to come to court to testify in the
petitioner's behalC refllsing to do so only ailer the judge's lengthy and
intimidating warning, strongly suggests that the judge's comments were the cause
of [the witness's] refusal to testify.

Webb v. .Texas, 409 U.S. at 97. Prosecutorial or judicial warnings that a witness may face

criminal charges for testifying may cause a witness "to change his testimony to fit the judge's

interpretation of the facts or to refuse to testify at all." State v. Rhodes, 224 S.E.2d 631, 636

(N.C. 1976)(emphasis added):

Either choice could be an infringement of the: defendant's Sixth Amendment

rights to confront a witness for the prosecution for the purpose of cross-
examination or to present his own witnesses to establish a defense. Both rights
are fundamental elements of due process of law, and a violation of either could
hamper the free presentation of legitimate testil11OJ,ly.

Any statement by a trial court to a witness \vhich is so severe as to put him or

other witnesses present in fear of the consequences of testifying freely constitutes
reversible error.

Rhodes, at 636.

67) This case is directly analogous to the federal prosecution where the witness was

silenced by a warning; that if he testified as expected he would face gun charges. See United

18
States v. Smith, 478 F.2d 976 (D.C. Cir. 1973) (finding constitutional violation where defense

witness was told that if .he testified as indicated by other testimony he could or would be

prosecuted for carrying a concealed weapon, obstrucling justice, and as an accessory to murder);

United States. v. AlacCloskey, 682 F.2d 468 (4th Cil'. 1982) (U.S. Attorney telephoned

defendant's girlrriend's attorney to advise him to remind his client that if she testified at trial she

could be reindicted on dropped charges); United States v. Goodwin, 625 F.2d 693 (5th Cir. 1980)

(defense witn~sses intimidated by threats of prison officials conditioned upon whether the

witnesses testified at trial); United Stales v. Harnmond, 598 F.2d 1008 (5th Cir. 1979) (defense

witness threatened by FBI agent with retaliation in other cases pending against him); United

States v. Henricksen, 564F.2d 197 (5th Cir. 1977) (per curiam) (defense witness intimidated by

terms of his plea bargain in another case); United States v. Thomas, 488 F.7d 334 (6th Cil'. 1973)

(per curiam) (defense witness told by secret service agent during recess of trial that he would be

prosecllted for a felony if he testified); Berg v. Morris, 4831'. Supp. 179 (E.D. Cal. 1980) (trial

court coerced witness into giving inculpatory evidence by twice warning him that his probation

would be revoked and peljury charges filed ifthe truth were not told). The Court and the District

Attorney's suggestiori that I-Ierman McMillian was subject to state and federal charges should he

testify consistel1tly with his prior statements to the FBI si.lencecl McMillian in violation of Webb

v. Texas.

68) A prosecutor is "the representative not oLan ordinary party to a controversy, but

of a sovereignty whose obligation to govern impartially is as compelling as its obligation to

govern at all." Berger v. United States, 295 U.S. 78, ~:8 (1935). The public may rightfully

demand "that a prosecution be conducted with energy. and skill, but the prosecuting officer

should see that no mifair advantage is taken of the accused." State. v. McCarty, 85-8024

(La.App.3 Cir. 1/23/85),463 So.2d 788.

69) The FourthCircllit has held that the state may not abuse its prosecutorial authority

in order to prevent a witness with a Fifth Amendment, privilege from testifying. In State v.

lValland,89-2417 (La.App. 4 Cil'. 12/5/89),555 So.2e1 478, the court fOlllld error where the state,

knowing that a co-defendant would provide exculpatory information fbrthe defenclant, refused to

conduct the co-defendant's trial first in order to accommodate both the witness's Filth

Amendment rights ai1d the. defendant's rights under the Sixth and Fourteenth Amendments.

"The prosecutor's interest in a criminal matter is to see that justice is done. 'It is as much his

19
duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use

every legitimate means to bring about a just one." Africk, Prosecutorial Discretion: Striking a

Balance, 36 La. Bar J. 16, 17 (1988), quoting Berger v. United States, 295 U.S. 78, 88 (1935).

70) Where the state uses threats of prosecution to induce a defense witness to invoke

his or her Firth Anwndment, privilege, the state may not then refuse to grant that witness

immunity. The federal courts have adopted a "prosecutorial misconduct doctrine," \;<,lhich

permits the trial court to force the prosecutor to elect between dismissal of the indictment and

providing immunity toa defense 'witness who becomes unavailable at the hmids of the state. I I

This rule applies where the prosecutor, "through its own overreaching, has forced the witness to

invoke the Firth Amendment." United States v. Rivera, <:n 1 F.2d 876, 887 (2d Cir. 1982), cert.
th
denied, 459 U.S. 1174 (1983); see also, United S'tates v. Lord, 711 l:;'.2d 887 (9 Cir. 1983)

(remanding to trial court to determine whether prosecutors' refusal tQ grant immunity was

designed to distort factfinding process); Virgin Islands v. Smith, 615 F.2d 964, 968-969 (3d Cir.

1980) (when "the prosecutor's decision not to provide immunity to a defense witness is made

'with the deliberate iritention of distorting the judicial factfinding process,' the court will enter a

judgment of acquittal 'unless the prosecutor consents to grant immunity.") (internal citations

omitted); United States v. Chalim, 812 F.2d 1302, 1310 (lOth Cir'. 1987).

71) [n this case, the state did not merely inform the trial coUrt of the witness's

potential privilege so that the trial court could take appropriate action. Rather, the state directly

threatened that witness with criminal prosecution and made it clear that the witness would be

subject to prosecution t{the witness exercised a lawful right to testify in support of the defense.

Prosecuting Mr. McMillan under these circumstances would have been retaliatory and

vindictive, and the state's th.reats were explicitly designed to intel'fere withMr. Anderson's

constitution.al right to present a defense.

72) On information and beliej~ Mr.McMillan has now become available to the defense

as a witness, thus making his evidence that Telly Hanktoll was the shooter newly available

evidence that would likely have changed the verdict and requiring a new trial in service of the

ends ofjustice.

II While the Louisiana Supreme Court has found that a trial court has no authority to issue immunity on its own, it
did not proscribe this remedy adopted by the federal courts. State v. Mattheson, 8 I-10972 (La. I 1/16/81),407 So.2d
I ISO. It is clear that the trial court may force the state to make accornmodations in certain circumstances to protect
a derendant's compulsory process rights. See State v. Walland, 89-2417 (La.App. 4 Cir.12/5/89)" 555 So.2d 478
(trial court should have forced the state to try co-derendant first so that co-defendant would not have a privilege and
would be rree to testify for defendant).

20
 Thefederal government improperly prevented the.fuTy.fi-olll hearing the testirnony
qj" FBI Agent ROil Reed as to the statements 1I1r. Me1l1illan has made identifying
TellyHanktol1 as the shooter

73) Arter the state rendered Mr. McMillan unavailable as a witness for the defense, it

also argued that theFBl report containing the exculpatory statement of Mr. McMillan could not

be presented to the jury. Among other arguments, the state claimed that the report was

inadmissible unless the defense called to the stand one ofthe FBI agents who took the statement

or another witness from the federal government who would lay the foundation for the statement

as a business record.

74) The defense then took steps and followed federal procedures lor trying to secure

the appearance of a federal agent in state court. See CFR 16.21-29. Nevertheless, the federal

government refused to Inake their agents available to testify.

75) .• Agents of the federal government routinely take the position that a fecleral

employee is not subject to the subpoena power of a stale court and may not be compelled to

testi ly in a state proceeding. This position does not account lor the constitutional right of a

criminal defendant to compulsory process. The grounds invoked by the federal government are

. that (l) regulations contained in the Code of FecieralRegulations create a privilege for the

federal government; see United States ex rei Touhy v. Ragen, 340 U.S. 462 (1951); anel (2) the

sovereignilllmunity. of the federal government keeps federal employees out of reach from state

subpoena power. The federal government's position, is outlined in the Code of Federal

Regulations. CFR 16.22.

76) During Mr. Anderson's trial, the federal government took such a position 1ll

declining to authorize the testimony

. .
orthe f81 agents.

77) After, the Fourth Circuit ruled on August 24, 2009, that the FBI report containing

Mr. McMillan's statenlent could not be admitted without the testimony of an FBI agent, the

defense submitted a written request that was received by the United States Attorney for the

Eastern District of Louisiana. 12 'rhat office refused Mr. Anderson's request. 13 See CFR 16.21-

29.

78) The federal government's refusal to make its FBI agents available as witnesses for

12 Allhough the United States Attorney's OITice provided to the defense an affidavit by one of the FBI agents, the

trial determined.that the affidavit still did not serve to lay the proper foundation for the written document.
13 A state defendant is also entitled to seek reliefby bringing an action under the federal Administrative Procedures
Act, challenging the decision of the United States Attorney in refllsil~gto allow a federal: agent to testify in a state
case. See 5 U,S.c. §702 (containing limited \vaiver of sovereign imlllunity). However, given the circulllstances and
timing of the events in this cas~, this was obviously not an available avenue.,

21
Mr. Anderson has violated his right to compulsory process and his right to present a defense

under the Sixth Amendment. 111 lJL~tiJrd v. State, 282 S.E.2c1 134 (Ga. App. 1981), the Georgia

Court of Appeals found the government's invocation of Touhy and sovereign immunity

particularly troublesome when the de1endant's compulsory process rights were at stake:

To hold that the trial court has jurisdiction to convict a de1endant but has no power to
marshall the evidence in his defense, or to hold that the AtlorneyGeneralmay forbid his
subpoenaed employees to produce material and then ultimately evade production
altogether because the wrong person was served "would be to apply a fox-hunting theory
of justice that ought to make Bentham's skeleton rattle."

ld. at 138 (citing United States ex reI Touhy v. Ragen, 340 U.S. 462 (1951)(citing Frankfurter, .1.,

dissent.)

79) In spite of the fact that the federal government refused to allow the FBI agents to

testify during trial, the defense has been in direct communication with staff of the FBI and has a

good faith basis for asserting that direct testimonial evidence from the FBI is now available. As

a result, new evidence not previously available to the c1eiense is now available and had that

evidence been presented at trial it would probably have changed the verdict at guilt or penalty

phase.

This Court improperly ruled that thejwy could no! be told that Mr. McMillan had
seen Telly Hankton commit the murders

80) Before the appellate courts ruled mid-trial that the statement of Mr. McMillan

could not be admitted without live testimony from an FBI agent, this Court ruled that the FBI

report was only partially admissible as a statement against penal interest. That ruling - excising

critical portions of Mr. McMillan's statement to the FBI and excluding these sections - was in

error. The statement o(Herman McMillan to the FBI was admissible in its entirety.

81) As an initial matter, it is a federal crime to lie to a federal agent. 18 U.S.C. §

1001. If the state takes the position that Me McMillian lied in his statement to the FBl- as it is

required to in order to pursue its theory of prosecution -Mr. McMillan was subject to prosecution

purely on the basis· of making this statement to the FBI. La.C.E. art. 804(B)(3) (statement

against penal interest is one so contrary to the witness's interests "that a reasonable man in his

position would not have made the statement unless he believed it to be true.").

82) Whatever the parameters of the rule admitting statements against penal interest,

however, the statement 01' I-Jerman McMillan is admissible because it is inherently reliable,

plainly relevant, and essential to Mr. McMillan's constitutional right - stemming from the Sixth

and Fourteenth Amendments to the United States Constitution and Article I, § 16 to tbe

22
 Louisiana Constit9tion - to present a complete defense.

83) "While hearsay should generally be excluded, if it is reliable and trustworthy and

its. exclusion \-vould interfere with the defendant's constitutional right to present a defense, it

should be admitted." State v. Gremillion, 89-822 (La. 5/1/89) 542 So. 2d t074, 1.078. Where the

defendant advances. a theory of defense, "[a]ll relevant evidence necessary to that defense must

be presented for a full adjudication." State v. Vigee, 88-122 (La. 1118/88), (holding that hearsay

supporting an accused's theory of defense must be admitted into evidence).

84) No state evidentiary rule can stand in the way of Mr. Anderson's federal and state

constitutional rights to present a complete defense. Washingtol1 v. Texas, 388 U.S. 14 (1967)

(the Compulsory Process clause is violated where a state evidentiary rulejs applied to keep the

defense from effectively presenting its case through witnesses); Rock v. Arkansas, 483 U.S. 44,

58, 56 (1987) (the right to present a complete ,defense is abridged by evidence rules that

"infring[e] upon a weighty interest of the accused" and are "arbitrary or disproportionate to the

purposes they are designed to serve."). In Gremillion, a defendant was harred by the trial court

from otTeringa decedent's statement that he was beaten· by three white males, whom he could

not identify; The Louisiana Supreme Court recognized that the statement was hearsay, but found

that the trial court comm.iUed i'eversible error in failing to admit the statement, which supported

thede((~lldant's trial theory, and which was reliable

85) Similarly, in Chambers v. Mississippi, 410 U.S. 284 (1973), the United States

Supreme Court reversed a conviction where - as in the il)stant case - an accused was prevented

from eliciting information showing that a third party had committed the murder of which he was

accused:

Although perhaps no rule of evidence has been more respected or more frequently
applied in jury trials tharl that applicable to the exclusion of hearsay, exceptions
. tailored to allow the introduction of evidence 'which in fact is likely to be
trustworthy have long existed. . . . In these circumstances, where constitutional
rights directly atrecting the ascertainment of guilt are implicated, the hearsay rule
may not be applied mechanistically to defeat the ends ofjustice.

ld. at 302. And see, e.g., State v. Van Winkle, 94-0947(La. 06/30/95), 658 So. 2d 198, 199

(reversing conviction where the trial court violated the right to present a defense by invoking a

state evidentiary rule to frustrate the defendant's effort to present relevant evidence because of a

state law evidentiary rule).

86) , Mr.McMillian's statement is reliable and relevant, ancI thus should have been

23
admitted under the rule of Gremillion. As explained above, it is well-established that Mr.

McMillan was in a position to obsei"ve the shooting, and the state has not contested that Mr.

McMillan was on the scene.. Moreover, the statement is, reliable, for Gremillion purposes, not

merely because it contains an acknowledgment of a crime to a federal agent, but also because it

interlocks with theeadier testimony by Calvin Grayer that Mr. McMillian fired shots at corner of

South Saratoga, in the direction of the intersection where the actual perpetrator killed the five

decedents. It is corroborated by the forensic evidence showing that Reggie Dantzler was shot

outside of the SUV, the driver shot from the driver's side, and several shots at the occupants

were shot from the passenger side - evidence that contrasts sharply with the state's unreliable

star witness. ltis also corroborated by the other evidence implicating Hankton.

87) A defendant shows corroboration for Gremillion purposes where he shovvs that

his proffered hearsay evidence is supported by other admissible evidence: thus, in Grernillion

itself- the Louisiana Supreme Court deemed the decedent's statement reliable because it was

corroborated by anothei', plainly admissible, statement. 542 So. 2d at 1078. And see, e.g., S'tate

v. Hill, 93-405 (La. App. 5 Cir. 3/29/94),636 So. 2d 999, writ denied, 94.,3144 (La. 9/1/95), 658

So. 2d, 1259 (hinging' reliability, for purposes of the Gremillion rule, on corroboration by other

evidence).

A new triallmist be ordered and lvould serve the ends (djustice

88) In a single-eyewitness murder case with no physical evidence, there is no defense

evidence more favorable, and more powerful, than the testimony of an eyewitness who was

present on the scene, and who says that someone else is responsible for this crime.

89) The excluded evidence, if heard by the jury, would likely have changed the

outcome of the trial. The details of Mr. McMillan's account were corroborated by Calvin

Grayer, and by the physical evidence at the scene. The statement itself - made against Mr.

McMillan's penal intel'est to a federal agent - carries indicia of reliability and thus would have

been a compelling piece of evidence lor the jury to consider. As it was, the jury was left only

with the unfinished story begun by Calvin Grayer that stopped just short of identifying the true

perpetrator. Indeed, the impression lell on th~ j my when the defense was abruptly preventecl

Ii-om presenting thetestimony of I-Jerman McMillan was that McMillan would not have testified

favorably lor Mr. Anderson.

90) Given the actions by the state and federal government;s in preventing the jury

24
 from hearing crucial, reliable, and exculpatory evidence, a new trial is warranted.

91) It is of course open to the state in a trial to disbelieve a defense witness ancl to

seek to impeach thatw\tness' ac<;:ount. It is then for the jury to determine the right of the matter.

It is no part of our system of justice that the defense should be prevented from presenting a

defense or that the jury should be deprived of assessing evidence which, if accepted, would

exonerate the defendant in a capital case. It is even less consistent with our basis sense of justice

or our heightened concern for Due Process in a capital case tbat a situation of this type should

arise as aresult of prosecutorial misconduct arising Crom threats to witnesses or liOl11 the federal

sovereign refusing to cooperate in putting relevant matters bel~)l'e a slate jury.

92)

93) The rulings of the court allowing the state to elTectively silence McMillan,

excluc1ingthe bulk of McMillan's statement and requiring live testimony of an FBI agent vvere

erroneous .and clear prejudice is shown. La. C. Cr. P. art. 851(2). With the new availability of

McMillan and the FBI agents, there is new and material evidence not previously available that

would probably have chariged the verdict at guilt or innocence. La. C. CL P. art. 851(3). In any

event, the ends of justi'ce would be sel'vecl by the granting of a new trial even if Mr. Anderson

were not entitled to a new ttial as a matter of strict legal right. La. C. Cr. P. art. 851 (5).

Ill. An injusticc was done to the defendant 'when thc court granted approbation to the
state's flagl"ant Brm(p violation in resJlcct of thela('c disclosure of the Crimcstoppers'
tips

The state committed a lJr({(f.F violation by disclosing at trial exculpatmJI

Crimestopper's tips too late fiJI' the defense to make meaning/it! lise of the
il?/iJrmation

94) '. On August 10,2009, the first day oftrial in this capital case, the state disclosed to

the defense for the Jir,st time a sheaf of Crimestoppers' tips covering June to July 2006 and

totaling 56 pages. The twenty-one Crimestoppers tips identified a wealth of information

implicating Telly fIankton, noting that Torrie Williams was receiving money to lie and

identifying others who had boasted of or spoken of being involved in, or responsible for tlle

killings. A number of the tips referred to people by street names or gave information about

places and other people relevant to the tip information. The state further advised that it had no

other information to disclose about any follow up investigation of these leads.

95) Counsel objected to the late disclosure of the tip sheets. The tip sheets were

clearly required forproduction under Bl'WUI and La. C. Cr. P. art. 718. The prosecution must

25
'J u·)
make timely disclosure of the favorable evidence to provide the defense with adequate

opportunity to present the material effectively in its case. Slale v. Prudholl71, 446 So. 2d 729, 738

(La. 1984). Late disclosure, as well as non- disclosure of exculpatory evidence may deprive tbe

defendant of a hlir trial. Slale v.Williams, 448 So. 2d 659, 665 (La. 1984); SIClle v. Landry, 388

So. 2c1 699, 702 (La:'1980);S'lwe v,Rotlssel, 381 So. 2-d 796, 798 (La. 1980). The tip sheets had

been in the possession of the state, for over three years without having been disclosed. The trial

court h)lll1d a Brac(v violation in·the late disclosure of the tipsheets.

7'l1e Ir;al courl failed 10 granl Ihe defense any relief.f;·olll Ihe prejudice (d'lhe
Brady violation and inslead Iran.~ferred Ihe burden (~llhe violalionFom Ihe slale
lolhe defendanl

96)' Ho\vever, the trial court denied the defense any relief arising from the l1agrant

13mc01 violation by the state. The defense contemporaneously objected and moved for a

continuance to allow an opportunity to investigate and make use of the new information. The

trial court nat out denied the continuance. Instead of the state suffering any consequence 14 from

its misconduct, the trial court placed the burden and consequence of the Brac0J violation squarely

on the defense.

97) In defiance of the, enormous amount of work, focus and energy a capital trial and

capital trial voir dire requires and the way in which a reasonably effective defense is constructed

through pre-planning and preparation of a trial strategy that encompasses, motions practice, voir

dire and both pbasesof trial, the trial court glibly opined that the defense had plenty of time to

investigate and use the new information. The trial court's view is wholly insupportable and

serves only to reward the state for violating the constitution and Code. Instead of the state

suJTeringany consequence from its misconduct, the defense was burdened with having to either

divert resources

, 98) A more accurate appreciation of the gravamen of a late Brac0; disclosure is found

in the analysis by the Second Circuit Court of Appeals:

The limited Brady material disclosed to [the defendantl could have led to specific
exculpatory information only if the defense undertook further investigation. When
such a disclosure is first made on the eve of trial, or when trial is under waY,the
opportunity to use it may be impaired. The defense may be unable to divert
resources from other initiatives and obligations that are or may seem more
pressing. And the delense may be unable to assimilate'the information into its
case. See UniledSlales v. Cobb, 271 F. Supp. 159, 163 (S.D.N.Y. 1967)
(Mansfield, .I.) ("There may be instances wl~ere disclosure of exculpatory
evidence for the first time during trial would be too late to enable the defendant to
use it effectively in his own defense, particularly if it were to open the door to

14 In addition to failing Lo granLLhe defense any relief [i'om the prejudice created, the trial court took no action Lo

sancLion the state, slJch as the contempt proceedings anticipated by Lfi. C., Cr. P. art. 729.5.

26
oc
 witnesses or documents requiring time to be marshalled and presented. ").

Moreover, new witnesses orcleveloplllents tend to throw existing strategies and

preparation into: disarray.

Leka v. Porfllondo, 257 F.3d 89, 101 (2d Cir. 200 J).

The trial court's ruling shows prejudicial error and the ends (?fjllstice lVOlild be
sen"ed by the granting <?la new trial.

99) As a matter of fact, the defense team were not able to dedicate any lneaningful

resources to the investigation.and development of the tip information during voir dire or trial.

No meaningful investigation was conducted of the Crimestoppers tips, no supp[ementalmotions

were prepared or filed. The defense had no opportunity to use the disclosed Brady material at

all. The defendant's Due Process rights under the state and Jecleral constitutions and

100) The trial court's denial of the continuance was based on the false premise that the

deiense had the time and resources to make use of the information provided. Hindsight proves

that this liremise washllse. Indeed, given the near continuous stream of revelations of Brady and

Giglio/Napue violations since the verdict in this case, counsel for Mr. Anderson has still not had

a reasonable opportunity to investigate and develop the Bym01 information supplied. As a result,

it is not possible to make a full showing of prejudice at this time but enough exists on the face of

the record to justify relief without waiting for a full post-conviction investigation and fil ing.

101) The state should not be permitted to benefit from its misconduct. The trial court's

ruling shows prejudicial error (art. 851(2)) and the interests of justice demand that the burden of

the Brady violation be moved back to the state and that a trial be conducted in which a full

investigation of all of the information bearing upon the guilt or innocence of Mr. Anderson has

been conducted (art. 851(5)).

IV. La. C. Cr. P. Art. 90S.5.1(c)(l), which IH'ecludes a Iwe-trial,judicial determination of

mental retardation unlcss the state consents, results in unreliablc determinations of
mental retardation and violates thc eighth amendmcnt rights .:ecognized in Atldn/ 5

OvervielV

102) In Atkins v. Virginia, the United States Supreme Court held that the Eighth

Amendment to the Constitution categorically prohibits the execution of mentally retarded

individuals. 536 U.S. 304,321 (2002).

103) The Court explained that "[b]ecause of their impairments, . . . by definition

[mentally retarded individuals] have diminished capacities to understand and process

15 The defense intends to present evide.nce from Caroline Everington. Vickie Swanson mid Laura Brackin at the

motion for new trial hearing to present expert evidence in·support ofthe matters alleged in this and the following
sections.

27
information, to commui1icate, to abstract from mistakes al1d learn 11:om experience, to engage in

logical reasoning, to control impulses, and to understand the reactions of others." Id. at 318.

Further, "[b]ecause of. their disabilities in areas of reasoning, judgment, and control of their

impulses, .. ,_ they do not act with the level of moral culpability that characterizes the most

serjous adult criminal conduct." ld. at 306. Moreover, the Court recognized that "their

impairments can jeopardize the reliability and fairness of capital proceedings against mentally

retarded defendants." Id. at 306-07.

104) To bes\lre, Atkins lert "to the States the task of developing appropriate ways to

enforce the constitutional restriction upon its execution of sentences." IeL at 317 (quotation

omitted). Atkins did not, however, give the states carte' blanche to enact procedures for such

determinations . that failed to protect against the wrongful execution of mentally retarded

individuals. IZather, the'Court held that "the Constitution 'places a subshmtive restriction on the

State's power to take the life' of a mentally retarded offender." Id. at 321 (quotation omitted)

(emphasis added), The state procedures must be "appropriate" to "enforce the constitutional

restriction." Id. at 317.

105) Louisiana's procedures for determining whether a capital defendant is mentally

retarded,.asset forth in La. C.Cr.P. 905.5.1, are tlmdamcntally inadequate to safeguard against

the unconstitutional execution of mentally retarded individuals and therefore violate Atkins and

the Eighth Amendment. Specifically, the Louisiana statute gives prosecutors veto power over

the holding of pre-trial hearings on mental retardation unci, in practice, compels defendants to

prove mental retardation to the jury at the penalty phase. See La. C.Cr.P. Art. 905.5.1(C)(l)

("The jury shall try the issue of mental retardation of a capital defendant during the capital

sentencing hearing unless the state and the defendant agree that the issue is to be tried by the

judge. !l the stat e (lmlthe defendant agree, the issue of mental retardation of a capital defendant

may be tried 'Prior to trial by the judge alone" (emphasis added).). As i"ecognized by numerous

academics, courts, and legislatures around the country, a penalty phase cletennination of mental

retardation - made by a death-qualified jury that has already voted to convict the c1eCendant and

that has been exposed to all of the aggravating evidence adduced by the prosecution at the guilt

and penalty phases - iJroc!uces unconstitutionally unreliable results. For the reasons set forth

below, the denial ot a preArial judicial determination of mental. retardation creates an

unacceptable risk that a mentally retarded defendant will be sentenced to death, in violation of

28
the Eighth Amendment 16

The Vast Mqiority l?/ De'ath Penulty Jurisdictions Permit or Require Pre-Trial
DeterminatiollS l?lMenlal Retardation.

106) To begin, it is critical to note that Louisiana's statutory procedures for

determining mental retardation in capital cases are directly at odds with those adopted by the vast

majority of death penaltyjurisc1ictions. Seventeen states in which the death penalty is available-

along with three states that only recently abolished the death penalty - provide the defendant

with a right toa pre-trial determination of mental retardation. 17 Three additional states require a

judicial determination of mental retardation either before or alter the penalty phase. IS In seven

more jurisdictions, the judge has discretion to grant a pre-trial AIkins hearing upon a motion by

the defense, although there .are no statutorily established procedures for the timing of the

determination. 19 In several of these jurisdictions - most notably, in the federal courts and in

16 We recognize that the Louisiana Supreme Court held th<lt the Constitution does not require th<lt the
detennin<ltion of mental ret<lrdation be made by a particular lact-finder at a particular time. S'tate v. Turner, 2005-
2425 (La. 07/10/2(06),12-13; 936 So. 2d 89,99. That determination, however, was made without the benefit of the
evidence that has been gathered in support of this brief and that will be presented to the court at an evidentiary
hearing. The Turiler case was raised in a wholly theoretical context by W<lY of pre-trial litigation. In the present
case, 1'vIr. Anderson makes a facial and as applied challenge in the l~lce of the manner in which the proceedings have
unfolded <lnd on the record of the actual events at trial. Renewed consideration is imperative in order to protect
mentally retarded capital defendants against \vrongful execution.

17 These states are: Arizona - Ariz. Rev. Stat. § 13-753 (2009); Arkansas - Ark. Code Ann. § 5-4-618 (2009);
Califomia - Cal. Penal Code § 1376 (2009); Colorado - Col. Rev. Stat. § 18-1.3-1102 (2009); Florida - Fla. R.
Crim. P. 3.203 (2009); see also Amendments to Fla. Rules of Crim. Proc. & Fla. Rules of App. Proc., 875 So. 2d
563 n.5 (Fla. 2(04) (Cantero, .I., concurring); Idaho - Idaho Code Ann. § 19-25 I5A (2009); Illinois - 725 III.
Compo Stat. Ann. 5/114-15 (2009); Indiana -Ind. Code Ann. §§ 35-36-9-2 through 35736-9-7 (2009)); Kentucky-
Ky. Rev. Stat. Ann. §§ 532.130, 532:135, 532.140 (2009); Mississippi - Chase v. State, 873 So. 2d 1013, 1029
(M iss: 2(04); Nevada - Nev. Rev. Stat. Ann. § 174.098 (2009); Ohio - State V. Lott, 779 N.E.2d 101 I, 1014-16
(Ohio 2(02); Oldahoma (by jury) - Blonner v. 5'tate, 127 P.3d 1135, 1139-44 (Okla. Crim. App. 2006); South
Carolina -.Franklinv. Alaynard, 588 S.E.2d 604, 606 (S.c. 2003); South Dakota - S.D. Codified Laws §§ 23A-
27A-26.1 through 23A-27A-26.5 (2009); Utah - Utah Code Ann. §§ 77-15a-IOI, 77-15a-I02, 77-15a-104 (2009).
North Cal"Olina also gr<lnts the judge authority to order a pretrial hearing with or without the state's consent. The
relevant statute provides that "[ulpon motion of the defendant ... the court me].)' order a pretrial hearing to determine
if the defel1lbnt is mentally retarded. The court sherll order such a hearing with the consent of the State." N.C. Gen.
Stat. § 15A~2()05(c) (2009) (emphasis added). Allhough the North Carolina Supreme Court has suggested that the
state must agree to a pretrial hearing, see Stale V. Locklear, 363 N.C., 438,462 (2009), the statutory language clearly
<lllows the trial court to grant a motion for a pretrial hearing even over the state's objection. Accordingly, courts
have in the past permitted - and, according to practitioners in the state, have continued to allow - pre-trial hearings
even when the prosecution does not explicitly agree to them. See. e.g., Slate v. Brow17, No. 93-CRS-3374-3375
(Super. Ct. Div., Mar. 24, 20(4); State v. Chamberlin, No. OI-CRS-7175-78, 54889 (Super. Ct. Div., .Ian. 14,2004);
State v. ,Staten, No. 00-CRS-889 & 890 (Super. Ct. Div., Feb. 18,20(2).
Additionally, three states that only recently abandoned the death penalty - New Jersey, New Mexico, and New
York - also allowed lor pretrial determinations of mental retardation. See State v. Jimenez, 924 A.2d 513, 516 (N..J.
2007) (per curiam); N. M. Stat. Ann. § 3 1-20A.2. I (1978); N. Y. Crim. Proc. Law § 400.27( 12) (Conso I. 2009).

IS Nebraska - Neb. Rev. Stat. Ann. § 28-105.01 (2009) (jud icial determination of mental retardation takes
place pre-sentencing); l)ehn~aI'e - I I Del. Code Ann. § 4209 (2009) (judicial deternlination 01' mental retardation
takes place at sentencing); Kansas - Kan. Stat. Ann. § 21-4623 (2008) (aller conviction of capital offense, delense
counsel may request, and judge may hold, a hearing 011 mental ret<lrdation).

19 In Alabama, in the absence of statutory guidance, courts have held that a pretrial judicial determination of

mental retal:dation is the better practice. See !vtorrol1' v. Stale, 928 So. 2d 315, 324 (Ala. Crim. App. 2004)
("encourage[ingl defendants to raise, and trial courts to resolve, mental-retardation issues before trial if at all
possible in order to avoid the burden and expense of a bifurcated capital trial"); Smith 1'. State, 2007 Ala. LEXIS 91
(Ala. May 25, 2007) ("Generally, an Atkins claim should be raised and addressed by the trial judge in a pretrial
he'1ring withOllt ajury.").
Under federal law, there is no statute setting forth mandatory procedures for a pretrial I'vIR determination.
However, a number of district courts have permitted.a pretrialjudici<ll determination of mental retardation, and that

29
,-, - ~(
 Alabama - pre-trial judicial determinations of mental retardation are generally considered to be

the best practice. Four additional death penalty states have neither passed legislation on the

timing oYthe mental retardation determination nor considered the question in case law?O
\ .

107) This leaves Louisiana in the company of only five other states that explicitly

require the defendant to prove mental retardation at the guilt or penalty phase, either in all cases

or when the prosecution does not consent to a pre-trial hearing? I Importantly, only one stale

besides Louisiana - A1issollri - gives Ihe prosecution veto p01ver over Ihe pre-trial Atkins

hearing.

108) Louisiana has thus adopted an approach to Aikins determinations that is

disfavored by the vast mnjority of. death penalty jurisdictions - an approach that many other

states careflllly considered and deliberately r~jectecl. From the available legislative history,22 we

may glean a number of reasons why states have chosen to provide defendants with the

opportunity to raise the question of mental retardation pre-trial, including: (a) due process

appears to be the generally accepted practice. See, e.g., United States v. f-Iar((v, 2008 U.S. Dist. LEXlS 29996, 4-6
(E.D. La. Apr. 10,2(08); United States v. Davis, 611 r. Supp. 2d 472 (D. Md. 2(09); United States v. Nelson, 4\9
r. Supp, 2eI 89\ .(E.n. La. 20(6); United States v. S'ablan, 461 F.Supp.2d 1239 (D. Colo. 2(06). See also
Congressional Research Service Report to Congress, The Death Penalty: Capital PLinishment Legislation in the
110th Congress, at 13 (Sept. 7, 2007) ("The limited available case law suggests - \vith some exception - that the
determination of the issue may be assigned to the court (rather than the jury) to be established by the defendant
under preponderance or the evidence standard prior to triaL").
According to information provided by a .lAG o I'liceI', there is no established statutory or case law on post-Atkins
determinations of mental retardation in the United States Armcd Forces. It is likely, however, that Rule 706 for
Court Martial (Inquiry int0 the mental capacity or mental responsibility of the accused) vvould govern. A motion lor
such an inquiry could be made by either the defense or the prosecution, but would probably be raised by the defense
on pretrial motion, or at any time therealler.
Conversations with practitioners in Pennsylvania have confirmed that the current practice in Pennsylvania is
. generally to have the mental retardation hearing pretrial, see, e.g., Commonwealth v. VanDil'ner, 599 Pa. 617, 624-
625 (Pa.2009) (defendant received a pretrial hearing on mental retardation), but that sometimes cases go to the jury
where M R)s d~cided by the jury as part of sentencing.
In Tennessee, COLII:tS have granted pre-trial hearings on mental retardation in the absence of legislative
guidance. See State v. Smith, 893 S.W.2d 908, 916 n.2 (Tenn. 1(94) (discussing a pre-trial hearing on mental
retardation and noting that it "would be preferable for the Delendant to raise the issue by a written pretrial motion").
In Texas, pre-trial determinations of mental retardation are not required, see Hunter v. State, 243 S.W.3d 664,
666 (Tex. Crim. App. 2(07), but also do nQt appear to be prohibited.
The Washington statute 011 mel)lal retardation does not specify the timing of the determination of mental
retardation. See Wash. Rev. Code Ann. § ]0.95.030 (2009).

2U These states are Montann, New Hampshire, Oregon, and Vvyoming. Conversations with practitioners in
these states have con lirmed that there have been no legislative or judicial pronouncements on the implementation of
Atkins.

21 These five states are: Missouri - Mo. Rev. Stat. § 565.030 (2009) (the court may decide the question of
mental retardation pre-trial only upon written agreement ol-the parties and with leave of the court); Connecticut -
Conn. Gen. Stat.§ 53a-46a (2008) (;nental retardation is decided by special verdict by the trier of fact at
sentencing); Gcorgia - Ga. Code Ann. § 17-7-131 (2009); .Jenkins v. State, 269 Ga. 282, 287 (1998) (mental
retardation is decided by the trier of !llct and set forth in the verdict at the guilt phase); Maryland - RichanLwn v.
State, 89 Md. ApI)· 259, 267 (Md. Ct. Spec. App. 1991) q[f"d, 332 Md. 94, 630 A.2d 238 (1993) (mental retardation
is decided by the trier of fact at sentencing); Virginia - Va. Code Ann. § 19.2-264.3: 1.1 (2009) (mental retardation
is decided by trier of fact avsentencing).

11 To counsel's knO\i,rledge, California, Florida, Idaho, Nevada, and New York (along with Louisiana) have
enacted legislation that specilically addresses pretrial hearings on mental retardation in capital cases and have
recorded legislative history on that speci['jc issue.

30
considerations;23 (b) avoiding undue prejudice to the defendant;24 (c) saving exorbitant costs

incurred by capital triaJs;25 (d) adhei:ing to the example set by the llpjority of states;26 (e)

analogizing the deten~1il)ationof mental retardation tootlwr issues that are:de~ided pre-trial;27 (0

13 See, e.g., Comments of the Criminal Court Steering Committee to the Supreme Court of Florida 4 (July
2(03) ("Due pl'ocess'considerations demarid that issues that exclude a defendant fi'om the death penalty be decided
pretrial in an expeditious and timely manner.") (citations omilted), available al
http://w\Vw.lmv .fs u. edu/l ibrary/ ns upct/sc03 c685/03 -685 ccsccommentmental retardation2~pd [

1'1 For example, the California legislature expressed that it was "essential that this determination be made prior
to trial" priniarily because "a pre-trial determination of mental retardation would avoid the jury being unduly
innuenced by the facts of the underlying crime vvhich are irrelevant to the mental retardation determination." Death
Penalty Executions: Mentally Retarded Persons: Ilearing on S.B. 3 Be({)re the S. Rules Comm., 2003 Leg., 2003-
2004 Sess. 7 (Cal. 2(03) (statement of Sen. John Burton, President pro Tempore, Senate Rules Comm.). See also
Leller·ji·omPauIGerowitz, Executive Director, California Attorneys for Criminal.lustice, to John Burton,President
pro Tempore, Calilt)rnia State Senate (reb. 3, 2003) ("Under Aikins. the o'equently horrific nature of these offenses
is not relevant to the application of the rule barring the execution of mentally retarded persons. I I' that were not the
case, Atkins himsel I' would not have been granted rei ief by the Court. It is, therefore, essential that the jury's
function be limited to determining whether or not the defendant is, in lact, mentally retarded. Otherwise, the ability
of the defendant to receive a fair trial on the issue will be greatly compromised. The best way to ensure an unbiased
determination, then, is to have an independent jury decide the issue, prior to the start of the criminal tria I.").

15 See Death Penalty Executions: Mentally Retarded Persons: Hearing on S.13. 3 ·Before the S. Rules Comm.,
2003 Leg., 2003-2004 Sess. 7 (Cal. 20(3) (statement 01' Sen. .IohnBurton, President pro Tempore, Senate Rules
Comm) ("[TJhis pre-trial ])l"ocedure would avoid the extraordinary expense associated with proceeding with a capital
trial if the defendant is determined to be mentally retarded and, thereltlre, ineligible to be executed."); Death Penalty
Executions: Mentally Retarded Persons: Hearing on S.B. 3 Before the Assemb. Comm. on Appropriations, 2003
Leg., 2003-2004 Sess. 2 (Cal. 20'03 ) (concluding that hundreds of thousands of dollars could be saved through pre-
trial determinations of mental retardation); Letterl1'om Paul Gerowitz, Executive Director, Cali Ibrnia Attorneys for
Criminal Justice, to John Burton, President pro Tempore, California State Senate (Feb. 3, 20(3) (on Iile with the
McGeorge Law Review) ("Detenniningmental retardation prior to the start of the capital trial will, in cases in which
the defendanttul'l1s· out to be mentally retarded, save the state hundreds of thousands ofdollars. Conversely, waiting
until the end of the guilt trial to decide the issue, as some others have proposed, could end up costing the state
hundred of thousands of unnecessary dollars, in any case in which it is eventually determined that the defendant has
mental retardation."). Professor James Ellis, who has worked with virtually all states that have legislated on the
execution of mentally retarded persons, testi fied before the Cali fornia legislature in 2003 that

[w]e now have a fe\'v states that have done this subsequent to the guilt phase: of the trial. And we have a
number of states that have: done it pretrial. What we have learned out of the experience of those states.
States that do it late, for example, Georgia, have endless litigation and have a lot of trials. States that do it
prior to trial and in particular those staters] that do it bench ,rather than jury prior to trial don't have a lot 0 I'
trials because those questions get resolved orten by agreement and without a lot of game playing.... that
works substantially better.

Death Penalty Executions: Mentally Retarded Persons: Heming on S.B. 3 Befbre the Assemb. Comm. on Public
Safery, 2003 Leg., 2003-2004 Sess. 2 (Cal. 2003) (statement of Pro lessor .lames Ellis) (on file with McGeorge Law
Review): . .
Other states in addition to California have noted the fiscal advantages of pre-trial determinations. See, e.g.,
Hearing on A.. 8. 14 Beltlrethe S. Comm. on .Judiciary, 2003 Leg., 1211l! Sess. (Nev. 2(03) (statement of Michael
Pescetta; Attorney) (,,[wle are talking about going through a death penalty trial, which means calling a much
larger jury pool, and death-qualifying a jury. This means a longer trial and going through a penalty phase,
where, if the defendant ultimately receives the death penalty, maybe this is reviewable. All of that costs a lot of
money. The sooner we get this finally resolved, the better it will be [or the process becmise the issue will then be
oveL"); Comments ·ofthe Criminal Court Steering Committee, to the Supreme Court of Florida 6 (.Iuly 2003) ("a
pretrial determination of disqualifying death penalty issues results in (a) conservation of judicial resources, (b)
elimination ·o(c the considerable expense incurred by county and state governments for needless preparation of a
penalty phase hearing and (c) reduction of time of pretrial incarceration."); Siale v. Flores, 135 N.M. 759, 763-
764 (N.M. 2004) (holding that "we recognize that a capital trial consumes significantly more resources than a
noncapital trial ancI that it would be beneficial to all parties to resolve the question whether the defendant is
ineligible for the death penalty as early in the proceeding as possible").

16 Comments of the Criminal Court Steering Committee to the Supreme Court ofrloricla 6 (.July 2003) ("lMlost
state legislatures that havti considered mental retardation as a bar to execution have decided to have the issue
determined by the trial judge pretrial); Hearing on II.B. 171 Before the S. Judiciary & Rules Comm., 2003 Leg.,
sill Sess. 3 (Idaho 10(3) (statement ofCaralee Lambert) ("There were a number of reasons for this; a majority of
oth~r states clo it pretrial by a judge'.").

17 c::omment$of the Criminal Court Steering Committee to the Supreme Court of Florida 6 (July 2003)
(citations omilled) ("Pretrial determination of other issues are allowed in related rules, For instance, the issue of
whether evidence or statements or the defendant should be suppressed generally occurs prior to trial. And the

31

:c
eliminating coercive pressure upon defendants to plead guilty solely to avoid the threat of

execution;28 and (g) sparing the victims' families from the strain of needless involvement in a

death penalty trial. 29 Many of these reasons will be discussed in greater depth below.

109) In short, Louisiana is an outl ier. Unlike most states that have considered the

issue, Louisiana has denied capital clefendants the opportunity to go directly to a judge and seek

a pre-trial determination of mental retardation. As will be described iT?/i"a, Louisiana's approach

is not only unusual but also constitutionally inrirm, for it creates a serious risk of erroneous

determinations of intellectual capacity and wrongful executions of persons yvho are protected

under Atkins and the EighthAmendment.

Capital Jurors Freqz(ently Pre-Determine the Question of Punishment and Have

Difficulty ,')ep<ll"ating Issues qj"Guilt and Penalty.

HO) There are many reasons why a pre-trial determination of mental retardation is

necessary in orclel' to reliably protect the constitutional right recognized In Atkins. The first is

that research shows that guilt-phase evidence ollen overwhelms the jury's decision-making at the

pemilty phase, arid that jurors fiequently make up their minds as to the sentence they will vote to

impose before the penalty phase. even begins. Therefore, when the· existence of mental

retardation - which would bar imposition of the death penalty completely - is determined at the

penalty phase,that decision is likely to be overshadowed by the facts of the crime and the jurors'

preconceiveclnotiolls of the appropriate punishment.

111) . Annlyses of interviews with capital jurors conducted by researchers from the

Capital Jury hojeceO confirm that "evidence concerning the defendant'.0 guilt spills over into

and dominates the sentencing deliberations." Bentele & Bowers, supra, at 1013. As explained

present rules provid~ for pretrial dism issalof a charge if there are no material disputed facts and the undisputed facts
do not establish a prima facie case of guilt against the defendant."); Hearing on H.B. 171 Before the II.R. Judiciary,
Rules and Administration Comm.,2003 Leg., sill Sess. 2 (Idaho 20(3) (statement of Molly Huskey, State Appellate
Public Defender) ("The reason there is a pretrial determination is tllat is how the competency of a person to stand
trial isjudged. The issue of menIal retardation is not an issue for a jury to decide. [t is a legal determination to be
made by the judge.").

28 Comme;lts oCthe Criminal Court Steering Committee, to the Supreme Court of Florida 7 (July 2003) (stating
that "a pretrial determination of the mental retardation issue eliminates the possibility that mentally retarded
defendants will be pressured to plead guilty in order to escape the threat of execution since they would have a ruling
on mental retardation befQre thejury recommends the death penalty.").

29 I Iearing on H.B. 171 Before the.S·. judiciary & Rules COIllIll., 2003 Leg., 57 th Ses~. 3 (Idaho 2003) (statement
of Caralee Lambert) ("There was some concern for victim's l~llllilies to have them go through a whole trial and t!len
at the end determine thattheclefendant was mentally retarded and wouldn't receive the death penalty.").

30 "The Capital J lIry Project ("C.I P")[ .is] a national study oCthe decision making ofcapital jurors. [As of 200 I,
t]he C.I P has conducted intervi·ews with some 1,155 capital jurors from 340 trials in I ~1 states. The interviews are
designed to chronicle jurors' experiences and decision making over the course of the trial, to identi fy poinls at which
various influences may c;ome intoplay, 3ndto reveal the ways in which jurors reach their final sentencing decisions.
Jurors were asked both structured questions with designated response options and open-ended questions seeking
detailed narrative accounts of their experiences as capital jurors." 13entele & 13owers, supra, 1017 (200 I).

32
in one article,

Interviews with 916 capltal jurors in eleven states reveal ... that many jurors
reached apersonal decision concerning punishment before the sentyncing stage of
the trial, before hearing the evidence or arguments concerning the appropriate
punishment, and before the judge's instructions [or making the sentencing
decision. Moreover, most of the jurors, who indicated a stand on punishment at
the guilt stage of the trial said they were 'absolutely convinced' of their early
stands on punishment and adhered to them throughout the course of the trial.

William J. Bowers, Marla Sanclys & Benjamin D. Steiner, Foreclosed Impartiality in Capital

Sentencing: Jurors' .Predispositions, Guilt-Trial E-cperience, and Premature Decision Making,

83 Cornell L. Rey. 1476, 1478 (1'998). See also William J. Bowers & Wanda D. Foglia, Still

Singularly Agonizing: LOlV'S jI'ailure To Purge Arbitrariness./i·om Capital Sentencing, 39 Crim.

L. ,Bull. 51, 56-60 (2003), available at http://www.albany.edu/scj/doc,uments/Singularly.pdf

(fincling that nearly h~llf of jurors decide on penalty belore hearing evidence or legal standards,

and that Jnost jLJrOrS claimed they were absolutely convinced of their premature decisions and

maintained their positions throughout the proceedings).

112) These findings suggest that, as a general matter, many jurors have a limited

capacity to judiCi()lJsly take into account mitigating factors at the penalty phase, because their

analysis is overwhelmed by, and often preceded by, a judgment about which punishment fits the

crime. 3l This problem of pre-judgment becomes even more serious, and produces more

tlagrantly unconstitutional results, when the jury is asked at the penalty phase to consider the

clerendant's mental retardation, which is not simply a mitigating hlctor to be considerecl with

other relevant inf(:mnation but a definitive bar to the imposition of capital punishment. A jury

that has already decided that the defendant should die is ill-equipped to provide a fair hearing on

the question of mental' retardation, when one answer to that question will legally preclude the

imposition of the jury's preferred punishment. When a jury has been exposed to aggravating

evidence at both the guilt and sentencing phases, and knows full well the legal efl'ect of a finding

of mentaL l;etardation~ the risk of bias is unacceptable. This procedure Jails to give meaning to

the robust protections afforcled by Atkins.

31 Relatedly, jurors n·equently fail to adequately consider mitigating factors, or even to understand what
mitigating evidence means. See Bentele & Bowers, supra, at 1013 (IInding that "jurors fail to understand, consider,
and give effect to mitigating factors"). One reason for this failure is that many jurors do not understand the court's
instructions regarding how such evidence should be considered. See William J. Bm,vers and Wanda D. Foglia, Still
S'il1gular~v Agonizing: Law's Failure To Purge Arbitrariness./i"ol1l Capital S'entencing, 39 Crim. L. Bull. 51 (2003)
(IInding thatnHlny jurors fa.il to understand the instructions regarding how to handle mitigating evidence).
In lact,many jurors mistakenly believe that if certain aggravatQrs are present, they 111 list return a death verdict.
S'ee Bentele & Bowers, supra, at 1013 (finding that "jul'Ors erroneously assume that aggravating factors require a
death sentence to be imposed"); Bowers & Foglia, supra (finding that one-third of jll1'ors erroneously believe that
death penalty must be imposed ifcertain aggravators are established),

33
 113).. There is, of course, a simple way out of this conundrum::to remove the Atkins

determination from the penalty phase entirely. Ordinarily, the jury's conl1ation of guilt-phase

and penalty-phase evidence is a difficult problem to solve, as the jury must consider the nature of

the crime itself when weighing the aggravating and mitigating circumstances and determining an

appropriate punishment. By contrast, the facts of the crime usually have little or no relevance to

a scientific diagnosis of mental retardation. A diagnosis 0 f mental retardation is based upon an

identification of ongoing adaptive and intellectual deficits that began before the age of eighteen.

AAMR, 2002; American Association ·on Intellectual and Developmental Disabilities, Intellectual

Disability: D~finition: Classj/ication, and S~vste1l1s (?lSupports, 5 (11 th ed. 2010)32 [hereinarter

AAIDD] ("Intellectual disability is characterized by significant limitations both in intellectual

functioning and in adaptive behavior

.
as expressed in conceptual, social, and .practical adaptive

skills. This disability originates before age 18."); American Psychiatric Association, Diagnostic

and StalistimlManual o(1I1ental Disorders, DSM-IV-TR, A 1 (4 th ed. 2000) [hereinaller DSM-IV-

TR] ("The essential feature of Mental Retardation is signiticantly subaverage general intellectual

functioning ... that is accompanied by signi ficant limitations in adaptive functioning in at least

two .. ,skill areas ..... The onset must occur belore age 18 years."); La. C.CLP. Art.

905.5.I(H)(l) (" 'Mental retardation' means a disability characterized by significant limitations

in both intellectual functioning and adaptive behavior as expressed in conceptual, social, and

practical adaptive skills. The 6nsetmust occur before the age of eighteen years."). The isolated

facts of the charged ctime have little, if any, relevance to this aggregate diagnosis. For example,

the nature of the crime itself - including, for example, the defendant's demonstrated ability to

load a gun - has no bearing upon whether the defendant is mentally retarded. This is because

nlcts are isolated, not chronic, and b/c not normed/standardized. See, e.g., AAIDD; John H.

Blume, Sheri Lynn Johnson & Christopher Seeds, QlAtkins and Men: Deviations From Clinical

Definitions Ql Mental Retardation In Death Penalty Case, 18 Cornell J. Law & Public Policy

689 (2009), available at http://www.lawschool.comell.edu/research/JLPP/upload/Blume.pdf

(noting, in particular, "The Limited Probative Value of the 'Sophistication' of the Crime.").

These
. facts, however, have an obviously prejudicial
. effect if known to the fact-finder making the

determination of mental retardation, and may preclude an accurate assessment of mental

32 The American Associationon Intellectual and Developmental Disabilities (AAIDD), formerly known as the
American Association on Mental Retardation (AAMR), prefers and uses the term "intellectual disability" rather than
"mental retardation."The two terms are syneinymolls. Because "mental retardation" is the terminology used by the
SLipreme Court in ;/ (kilts, we continue to use the older term. Any references by other sources cited in this brief to
"intellectual disability" apply with equal force to mental retardation.

34
retardation. The determination is not, therefore, suitable for the penalty phase; such a

determination is automatically prejudicial to the dcfendant.

114) For this reason, the American Board of Professional Neuropsychology

recommends that the' issue 0 f mental retardation and the faels of a specific crime should be

incielJenderitly determined, as the presence or absence of a criminal act ,and its facts have no

bearing on the mental I~etardation diagnosis. The Board states that the consideration of the faels

of a crime in the melltal retardation context would likely distract a t~lct-,finder from the task of

determining the presence or nbsence of mental retardation. The National Academy of

Neuropyscbology states that the faels of a crime should not be introduced into the mental

retardation determination, as such faels can only serve Lo bias the process. The Academy

"strongly recommend[s] that the determination of mental retardation be made independent of the

facts of the crime."

115) The Oklahoma Court of Criminal Appeals has taken precisely this approach and

has held that a jury' e111panelled to determine whether a capital defendant is mentally retarded

may /lot be eXjJosed to prejudicial 'information regarding the crime itselt: unless that information

has some legitimate bearing upon the question of mental retardation. Lambert v. State, 2005 OK

CR 26, P14, P17 (Okla. Crim. App. 2005). In Oklahoma, a separate jury, which is not death

qualified, is, convened "to determine the sole question of mental retardation." Blonne,. v. State,

2006 OK CIt 1, 8 (Okla. Crim. App. 2006). According to the Oklahomq. courts, the accuracy of

that determination can be assured only if the jury does no! also hear highly prejudicial

information about the' capital crime. The Court of Criminal Appeals explained:

At~empting to determine whether a capital defendant is mentaHy retarded, aller

his conviction and the imposition of a death sentence, is dill'icull and ii-aught with
danger. This Court intended to severely restrict any evidence of criminal activity,
in order to avoid prejudice and confusion of the issues. Lambert committed
a horrible crime. That crime, and others he committed, should not have been the
focus of the mental retardation proceedings. The prosecution's use of this
evidence shifted the focus away from Lambert's mental capabilities and to his
criminal actions. The recoi:d shows that this improper and inllammatory evidence
inl1uenced the jury's verdict, which cannot be otherwise explained.

Lambert, 2005 OK CR at P30.

116) Because a fact-finder can and should determine whether the defendant is mentally

retarded b~r considering the long history of his life withoulre./erence to the crime itselC there is

no rational reason wl}ymentaI retardation should be decided at the penalty phase at all. There is,

however, every reason to separate the determination of mental retardation from the penalty phase

3S

I
and prevent the evidence on guilt and penalty from seriously biasing the determination of mental

retardation.

In Other Contexts, Courts Have Recognized the Need to Exclude Prejudicial

hi/ormation and/()r to Separate Decision-A1aking into Discrete Stages in Order to
Protect the D~lendant's Right to a Fair Trial.

117) .!twill come as no surprise to the court that when the jury hears damaging

information pertaining to one question, that information has the tendency to bleed into and

substantively affect thejury's decision-making on a distinct matter. That, of course, is the nature

of prejudice - and it is the reason that courts exclude prejudicial inform.ation from the jury's

purview under any number of circumstances, as a matter of course.

118) As a general matter, where two distinct legal or factual issu:es must be resolved in

a single case, a risk arises that the process of deciding one of those issues. will be prejudicial to

the impartial determination of the other. In certain circumstances, the danger of prejudice is so

great that the appropriate course of action is to separate the two decisions - in some cases, by

requiring those decisions to be made at different times, and in other cases, by different decision-

makers. The remedies for such prejudice in other areas of law support Mr. Anderson's position

that the determination of mental retardation, similarly, is a decision that must be made separately

from the decision on guilt and on penalty.

Bifurcation of capital trials

119) Of course, the structure of the capital trial system itself illustrates the importance

of discrete decision-making in order to minimize the risk of undue prejudice. The bifurcated

capital trial allows the jury to make a decision on guilt befure it is permitted to hear aggravating,

prejudicial information that goes beyond the scope of the crime. As the United States Supreme
'.

Court explained,

When a human life is at stake and when the jury must haye information
prejudicial to the question of guilt but relevant to the question of penalty in order
to impose a rational sentence, a bifurcated system is more likely to ensure
elimination of the constitutional deficiencies identified in Fllnl1Gl~.

Gregg v. Georgia, 428 U.S. 153, 192 (1976) (plurality). Louisiana, like all otber deatb penalty

states, hasadoptecl a bifurcated structure for capital trials. See La. C.Cr.P. art. 905 et seq.

(establishing procedures for a separate sentencing phase arter the verdict on guilt). The

deJendant's right t:o an Unbiased decision on guilt is protected by exposing the jury to the

potentiallydevastating informatic>il that might be admissible at the penalty phase only after guilt

has already been decided.

36
 120) The decision on mental .retardation is no less susceptible to prejudice than the

decision on guilt. It, too, must be. made discretely: the decision-maker must be shielded from the

inJlucnce of prejudicial information that may be relevant to penalty - orio guilt- but that has no

bearing upon the existence or the absence of mental retardation. [hnun] For the same reason that

states have universally adopted a bifurcated capital trial system in the wake of Gregg, states must

separate the mental retardation determination from the decisions on guilt and punishment.

Pre-trial hearings on thevoluntariness of confessions

121) Similady,: the United States Supreme Court has held that leaving the decision on

the volz.mtariness ql a COI?j(;ssion to the jury that is charged with deciding the question of guilt

violatesd~le process. Jackson v. Denno, 378 U.S. 368 (1964). Under Jackson, the threshold

determination of the voluntariness of a confession (and hence its admissibility) must be made

11rst by the court in a pre-trial hearing, outside the presence of the jury. See also Se(lv. Collins,

973 F.2d 1198 (5th Cir. 1992) (holding tbat the determination of the free and voluntary nature of

the confession must be made in a pretrial hearing, outside the presence of the jury); State v.

Hillman, 298 So.2d 746 (La. 1974) (same).

122) Jackson concluded that without such a pre-trial determination, the jury's findings

as to guilt and as to voluntariness were likely to be unreliable. A jury presented with a

confessiolll1light well tend to believe in its truth - because confessions as a genre are inherently

persuasive to juries ~ regardless of its admissibility. If the jury believes in the truth of the

confession, it will also tend to believe in the voluntariness ofthe confession, despite the hlct that

these two determinations are meant to be discrete. Alternatively, having already heard the

contents of the confession, the jury will tend to overlook its involuntariness and allow the

underlying information to inl1ucnce the verdict regardless bf the statement's admissibility. In

other words, the jury's determination of guilt will predictably bleed over into its voluntariness

determination. As the Supreme Court explained,

The jury .. _ may find it difficult to understand the policy forbidding reliance
upon a coerced,but true, confession .... That a trustworthy confession must also
be voluntary if it is to be used at all, generates natural and potent pressure to find
it voluntary. Otherwise the guilty defendant goes free. Objective consideration of
the conl1icting evidence concerning the circumstances of the confession becomes
difficult and the implicit findings become suspect.

Jackson, 378 U.S. at 3S2. Because of this inevit.able confusion, [wrong word] Jackson held that

due process requires that the application of the exclusionary rule be len to the trial court. The

defendant is due all iilitial, untainted determination of voluntariness by ajudging body that can

37
make such a determination hlirly and discretely.

123) The same rationale necessi tates a pre-trial hearing regarding mental retardation in

an AIkins casc.· Under the current statute, the jury - which may be unsyinpathetic to the

constitutional rule announced in Atkins or may be inclined to bend it under the inHuence of

graphic evidence of an ugly crime committed by a mentally retarded defendant - is presented

with evidence of guilt and votes to convict. Immediately afterwards the jury is asked to make a

finding that operates as a "legalistic" exclusion of the death penalty as punishment. As in

Jackson, this situation "generates natural and potent pressure" to find tbedefendant not mentally

retarded. "Otherwise the guilty defendant goes free" - or, more precisely, otherwise the guilty

defendant escapes the ultimatepunishmcnt, a punishment that the entire death-qualified jury has

agreed is appropriate for the charged crime.

124) Thus, as in Jackson, due process requires that a capital defendant receive a

discrete, pre.:.trial determination of mental retardation in order shield that determination from

prejudicial information about guilt and to exponentially increase its reliability.

Exclusion of irrelevant ami prejudicial evidence, including prior bad acts

125) Across all areas of law, the defendant has the right to ensure fair and impartial

decision-making by preventing the t~lCt-finder's exposure to irrelevant and/or prejudicial

infonnation. 33 See, -. e.g., La. Code Evid. art. 402 ("Evidence which is not relevant is not

admissible."); La. Code Evid. art. 403 ("Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfairprejuc1ice, confusion of the

issues, or misleading the jury ...."); La. Code Evil\. art 404(8) ("[E]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show that he acted

in conformity therewitl\-"). In particular, Louisiana courts have shown special concern about the

preju~lice ofadmitting evidence ofprior bad acts. As explained in the landmark decision, State

v. Prieur,

.The admissibility of other acts of misconduct involves substantial risk of grave

prejudice to a defendant. As to the prejudicial effect of evidence of other crimes,
Wigmore says:

"* :I: * The natural and inevitable tendency of the tribunaL-whether judge

or jury-is to give excessive weight to the viciolls record of crime thus

exhibited, and either to allow it to bear too strongly on the present charge,
or to take the proof of it as justifying a condemnation irrespective of guilt
orthe present charge. * * 'I'" 1 Wigmore, Evidence § 194 (3rd EcI.).·

33 Evidence about the crime is not only prejudicia/to the delenninalion of mental retardation; it is also usually
irrelevanlto it. See ~'upl:a Part I.e.

38
 The probative value of evidence of unrelated otTenses in relation to the charged
offense should therefore be weighed in light of its possible prejudicial effect, its
tendency to inlluence the triers of t~lct improperly as to the present guilt of the
accused. See McCormick on Evidence, s 190 (Cleary Ed. 1972)... , Evidence of
crimes related to the offense with which a defendant is charged is inadmissible
except under special exceptions....

Statev. Prieur, 277 So:2d 126, 128 (La. 1973).

126) Like tile evidence of prior crimes that Prieur excludes from criminal trials,

evidence adduced by the prosecution to show guilt of a capital crime and the additional

damaging informatiori that itmay introduce in the penalty phase 34 "involves substantial risk of

grave prejudice" to the determination of mental retardation - so much so that "the natural and

inevitable tendency" of the decisionrnaker will be to weigh evidence of guilt and aggravation

more heavily than evidence of lilental retardation. The decision on mental retardation will

inevitably be infected by the damaging evidence from trial. As the Lo.uisiana Supreme Court

conclltded iiI Prieur, the only solution is one of exclusion: to make a discrete, pre-trial

deteniIinatiOli 0 f mental retardation.

Protections against prej udicial joinder

127) Olle final analogous example in law is that a defendant who faces multiple

crill1inalch~lrges has a right to sever his trials on the various COUlltS - i.e., to receive discrete and

separate decisions
. on discrete aiul separate qllec~;tions - iCjoinder would be overly
.
prejudicial.

Joinder of multiple offenses in the same indictment is only permitted if they "are of the same or

similar character or are based on the same act or transactilin or on two or more acts or

transactions connected together or constituting parts of a common scheme or plan." La. C.Cr.P.

Art. 493 (2009). A single jury is not entrusted to make decisions on guilt and innocence with

respect to elitirely distinct offenses - or even with respect to related offenses when doing so

would be confusing orprejuclicial. La. C.Cr.P. art. 495.1 (2009) ("If it ap'pears that a defendant

or the state is prejudiced by a joinder of o/Tenses in an indictment or bill of information or by

sllch joindeii'ror trial together, the court may order separate trials, grant a -severance of olTenses,

or provide whatever otherreliefjustice requires."). The Louisiana Supreme Court has held that

considerations for the trial court in determining whether prejudice may result
from joinder inClude whether the jury would be confused by the various counts;
whether the j'ury would be able to segregate the various charges and evidence;
whether the delendant could be confounded in presenting his various defenses;
whether the' crimes charged would be used by the jury to inter a criminal

3,1 Inlonnation about unrelated prior bad acts that is inadmissible at the guilt phase is (l'equently admissible at
the penalty phase. Beca\lse the defendant's character is inherently at issue at the penalty phase of a capital trial, the
Louisiana Supreme Court has permitled the state to introduce evidence of prior felony convictions and of
unadjudicated vio lent criminal conduct. See Siale v..Jackson, 608 So. 2d 949 (1992).

39
 disposition and J.inally, whether, especially considering the nature of the charges,
the charging of several crimes would make the jury hostile.

State v. Celestine, 452 So. 2d 676, 680 (La. 1984) (quoting State v. fYashington, 386 So. 2d 1368

(La. 1980)). Adhering to Celestine, Louisiana courts have required severance when "the

possibility of confusion and the inherent prejudicial effect cannot be sufficiently curtailed by

other safeguards." State v. 1I-1i171s, 478 So. 2d 685, 689 (La.App. 2 Cir. 1985) (requiring partial

severance in a case involving two counts of purse snatching, two counts of second degree

battery, and one count of thell of property against four different victims).

128) When a jury is asked to determine the existence of mental retardation at the

sentencing phase - in the midst of its deliberations on the aggravating evidence that the state has

managed to amass over the course of a capital trial - "the possibility of confusion and the

inherent prejudicial errect canno~ be sulTiciently curtailed ...." ld. We do not permit a single

jury to decide a defendant's guilt of unrelated offenses, or to judge guilt of related offenses

where joinder would be prejudicial. No more should we permit a jury to simultaneously

determine the existence of mental retardation and the appropriate punishment, 'which is a

substantively distinct, yet highly inllammatory, determination. Making the Atkins determination

at the penalty phase implicates all of the concerns presented by an impermissible joinder: it

connates the questions of punishment and intellectual capacity and inevitably prejudices the

defendant.

Evidence (~lMimtal Retardatio17 1.,,' a "TJ1!()-Edged S\l'ord": Jurors VieH'

Intellectual Deficiency asan Aggravating as fYell as a Mitigating Factor.

129) A second concern raised by a penalty-phase jury determination of mental

retardation is one that has long been recognized by the United States Supreme Court: that

evidence of mental retardation acts as a "two-edged sword." In other words, jurors tend to view

such inLormation as aggravating as well as mitigating because of stereotypes and prejudices

about people with disabilities', ~nd because of concerns about future dangerousness. As the

Supreme Court e~plainedil~ Atkins, "reliance on mental retardation as a n~itigating factor can be
,
a two-edged sword that may enhance the likelihood that the aggravating factor of future

dangerousness will be Lound by the jury." Atkins v. Virginia, 536 U.S. 304, 321 (2002) (citing

PelilY \J. Lynaugh, 492 U.S. 302,323-25 (1989)).

no) Scholarly literature has corroborated this concern. One" article based on pre-
."
Atkins data collected by the Capital Jury Project identified a significant discrepancy between the

40

\J
 percentage of jurors (80.7%) who believed, in answering a hypothetical question, that evidence

of mental retardation would make them less likely to vote for death, and the percentage ofjurors

(51.1 %) vvho ac;:tually believed that the defendant was mentally retarded i,n their case and said

that that evidence had made them less likely to vote for death. See Marla Sandys, Adam Trahan

& Heather Pruss, Taking Account qlthe "Dirninished Capacities of the Retarded": Are Capital

Jurors up t(y the Task?, 57 DePaul L. Rev. 679,688-89 (2008). The authors posited that

lo]ne reason that jurors frequently fail to treat evidence of mental retardation as
mitigation may be its relationship to perceptions of dangerousness. To the extent
that jurors believe that the defendant's mental retardation rel1ects an inability to
control one's behavior or a tendency toward random violence, it is plausible that
what should be exceptionally strong mitigating evidence quickly becomes
aggravating evidence.

Ie!. ,at 689. Indeed, interviews cOilducted by the Capital Jury Project supported this hypothesis:

[T]hedata suggest that capital jurors are more likely to perceive a mentally
retarded defendant as dahgerous to others than a person who is not mentally
retarded. 'Given the documented relationship between perceptions of future
dangerousness and case outcomes, the disparity between the anticipated and the
actual mitigating inl1uence of mental retardation becomes more understandable.

Id. at 690 (footnote omitted). See also Stephen P. Garvey, Aggravation and ./'vfitigatiol1 in

Capital Cases: IVlutt do Jurors Think?, 98 Colum. L. Rev. 1538, 1564 (1998); Joshua

Scil1l1heinl.er~ A' Continuing Source (~l Aggravation: the Improper Consideration (!l Mitigating

Factors in Death Penalty Sentencing, 41 Hastings L.J. 409 (1990); Ellen Fels Berkman, A1ental

Illness (/s an Aggravating Circumstance in Capital Sentencing, 89 Colum. L. Rev. 291 (1989).

Fear of future dangerousness is one of the most important J1:1ctors in juries' decisions whether or

not to impose the death penalty - one that might easily overshadow the mitigating impact of

evidence of mental retardation. According to Capital Jury Project data,

future dangerousness plays a highly prominent role in the jury's discussions

during the penalty phase. One of the earliest C.I P studies, which relied on South
Carolina data, found that topics related to the defendant's dangerousness should
he ever return to soCiety (including the possibility and timing of such a return) are
second only to the crime itself in the attention they receive during the jury's
penalty phase deliberations. Future dangerousness· overshadows evidence
presented in mitigation (such as the defendant's intelligence, remorse, alcoholism,
mental illness), as well as any concern about tbe defendant's dangerousness in
prIson.

.Iohn H. Blume, Stephen P. Garvey, & Sheri Lynn Johnson, Future Dangerousness In Capital

Cases: Always "At Issue", 86 Cornell L. Rev. 397,404 (2001) (citing Theodore Eisenberg &

Martin T. Wells, Deadly COT?filsion: .Juror Instructions in Capital Cases, 79 Cornell L. Rev. 1, 6

(1993 ).

131 ) Fear of and prejudice against individuals with mental retardation is not limited to

41
the capital context; it is commonplace in society at large. Concurring in the judgment in part and

dissenting in part from City(~f Cleburne v. Cleburne Living Or., Justice l'vlarshalt catalogued a

history of animosity toward the mentally retarded in the United States:

[T]he mentally retarded have been subject to a "lengthy and tragic; history" ... of
segregation and discrimination that can only be called grotesque. During much of
the 19th century, mental retardation was viewed as neither curable nor dangerous
and the retarded were largely len to their own devices. By the lalter part of the
century and durIng the first decades of the new one, however, social views of the
retarded underwent a radical transformation. rueled by the rising tide of Social
Darwinism, the "science" of eugenics, and the extreme xenophobia of those years,
leading medical authorities and others began to portray the "feebleminded" as a
"menace to society and c!vilization ... responsible in a large degree for many, if
not all, of our social problems." A regime of strite-mandated segregation and
degradation soon emerged that in its virulence and bigotry rivaled, and indeed
paralleled, the worst excesses of Jim Crow. Massive custodial institutions \vere
built to warehopse the retarded for life; the aim was to halt reproduction of the
retarded and "nearly extinguish their race." Retarded children were categorically
excluded from public s~hools, based on the false stereotype .that all were
ineducable and on the pUrported need to protect nonretarded children from them.
State laws deemed the retarded "unfit for citizenship."

Segregation was accompanied by eugenic marriage and sterilization laws that

extinguished lor the retarded one of the "basic civil rights of man" - the right to
marry and procreate.....

Prejudice, oncc let loose, is not easily cabined.... As of 1979, most States still
categodcally disqualilied "idiots" from voting, without regard to individual
capacity and with discretion to exclude len in the hands of low-level election
officials. Not until Congress enacted the Education of the Handicapped Act .
were "the [doors] of public education" opened wide to handicapped children .
But most important, lengthy and continuing isolation of the retarded has
perpetuated the ignorance, irrational fears, and stereotyping that long have
plagued thcm..

City (~lCleblirne v. Cleburne Living Or., 473 U.S. 432, 461-464 (1985) (Marshall, .I., concurring

in the judgmcnt in part and dissenting in part) (footnotes and citations omitted). See also .lames

W. Ellis and Ruth A. Luckasson, l\1entally Retarded Criminal Defendants, 53 Geo. Wash. L.

Rev. 414, 417-421 (1985) (detailing the history of negative attitudes toward mentally retarded

criminal defendants). Although a number of legislative actions have been taken in recent years

to counter the discrimination faced by those with intellectual and other disabil ities, including the

Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., fear;; ofdangeroLlsness and

stereotypes about people with mental retardation have persisted. Indeed, the experience of the

ARC of Louisiana demonstrates ,that irrational fears and stereotypes continue to dominate the

perception of the mentally retarded by many in our community, and that these attitudes are

entrenched and not easily moc1ilied. Against this background of negative social attitudes toward

those with ment<~l retarclc~ltion, it is far from clear that evidence of mental retardation will induce

sympathy at tbe penalty phase rather than fear.

42

_ '0.1 • ..- __ -" oJ

 132) Atkins itselfrecognized jurors' tendency to view evidence or mental retardation as
aggravating as one of a number of factors that make a mentally retarded defendant particularly

vulnerable to "wrongful executiori." AtkiJ7S, 536 U.S. at 324. !twas in part to counter tbis

tendency that the United States Supreme Court ultimately found that, as a categorical matter,

mentally retarded individuals sholl1d not be subject to the death penalty at all. It is p<ltently

inadequate to enforce Atkins, and to protect mentally retarded perso~1s from the risk of

improvident death-sentencing by ajury, through a procedure which allO\vs those very sCll71ejuries

to decide the existence of the. facts on which the prohibition turns. Justice is not served by

exposing a capital sentencing jUl'y to the double-edged evidence of' a deLendant's mental

retardation." in . or(h~r to . prevent "wrongful execution," without first attempting to resolve the issue
,

outside thejury's presence. 35

35 Of course, if a defendant is entitled to a pre-trial AIkins hearing, he may choose to present evidence of his
mental retardation to the .court in a pre-trial hearing and, if the court determines the issue adversely, forego the
opportunity to present such evidence again to the jury, precisely because of his fear regai'ding the jury's prejudicial
assessment of.this type of evidence. Similarly, in Slale 1'. lVi/iiams, defense counsel chose not to focus on mental
retardation as a mitigating factor before AIkins came down. See, e.g., Slale v. Trilliams, 831 So. 2d 835, 856 n.31
(La. Nov. I, 2002) ("Because trial of this maller was conducted prior to Atkins, mental retardation as a factor
exempting defendant from the death penalty was not an issue. Therelore, counsel's trieil strategy may have been to
shill the focus away fi'om any diagnosis of mental retardation. As mentioned previously, the mere term 'mental
retardation' connotes negative images ins~)I]lepeople. Many individuals with this disability complain the term is
stigmatizing and is erroneously used as a global summary about complex human beings.").
If no pre-trial AIkins forulll is available, however, then in order for the AIkins issue to be raised at all, the
defelldant is forced to present mental retardation evidence to the jury. lIe may be required to relinquish his Sixth
Amendment right to present the defense of his choosing - i.e. a penalty defense focusing on other factors than
mental retardation - in order to pursue his Eighth Amendment right not to be executed as a person with mental
retard'ilion. Such a conditioning of the exercise of one constitutional right lipon the relinquishment of another is
unconstitutional. In Simmons jI. United Slales, 390 U.S. 377 (1968), the U.S. SU\11:eme Court addressed the
admissibility of a defendant's testimony in a suppression hearing at the guilt phase of his' trial. The Court held that
to admit such evidence would in effect force the defendant to relinquish his Fillh Amendment right to remain silent
in order to pursue his Fourth Amendment rights regarding suppression of illegally seized evidence, and that such a
forced choice between constitutional rights was constitutionally unacceptable:

The rule adopted by the cOll.rts below does not merely impose upon a defendant a condition which
may deter him (l'omasserting a F6urthAmendment objection - it imposes a condition ofa kind to
\vhich this Court has always been peculiarly sensitive. For a defendant who i'ishes to establish
standing must do so at the risk that the words which he ullers may later be used to incriminate
hil,n. Those courts ,vhich have allowed the admission of testimony given to establish standing
have reasoned that there is ilOviolation of the Fillh Amendment's Self-Incrimination Clause
because the testimony was voluntary. As an abstract matter, this may well be true. A defendant is
'compelled' to testily in support of a motion to suppress only in the sense that (file reli'ains ll'om
testifying he will have to forgo a benefit, and testimony is not always involuntary as a maller of
law simply because it is given to obtain a bene lit. However, the assumption which underlies this
reasoning is that the defendant has a choice: he may refuse to testily and give up the benefit.
When this assumption is appl ied to a situation in which the "benefit" to be gained is that allllrded
by another provision of the Bill of Rights, an undeniable tension is created. Thus, in this case
Garrett was obliged either to give up what he believed, with advice of counsel, to be a valid FOlll'th
Amendment claim or, in legal el'lect, to waive his Fillh Amendment privilege against self-
incrimination. In these circumstances, we find it intolerable that one constitutional right should
have to be surrendered in order to assert another. We therellJre hold that when a delendant
testifies in supporlofa motion to suppress evidence on Fourth Amendment grounds, his testimony
may not thereafter be .admilled against him at trial on the issue of guilt unless he makes no
objection. .

S'immol1s, 390 U.S. at 393-94. S'eea/so Lr4koll'itz v. CUl1ningham, 431 U.S. 801, 807-08 (1977) (exercise of fifth
amendment rights cannot be conditioned on a sacrifice of the right to engage in private, voluntary political
associatiolls). Similarly,,in this case, ,Mr. Anderson has a well-established Sixth Amendment right to present the
defense ofhis.choic~. See, e,g., Chambers v. Mississippi, 410 U.S. 234 (1973). He cannot be (arced to relinquish this
right in pursuit of his Eighth An~endment right not to be executed as a person with mental retardation.

43
 .Juries Sul?ieeted to Death Qualification Pursuant to ~Vither.spoon v. lllinois Are
Dic~projJortionalelyProne To Impose Death.

133). A third reason why penalty-phase determinations or mental r~tardation produce an

unacceptably high risk of wrongflllexeclltion lies in the process of death qualification of capital

juries. This process, unique to capital trials, excludes a significant subset of potential jurors who

could impartially determine questions of guilt and mental retardation and puts into place a jury

composed of individuals who have already publicly stated their willingness to impose death.

Putting the issue of meptal retardation before a death-qualified jury creates an unacceptable risk

of an erroneous determination,

134) A significant body of psychological, sociological, and legal literature has

doclimented that a death-qualified jury is not just willing and able to impose cleath but

significantlYl110re inclined towards death as a punishment--and significantly less interested in

due process rights anel values--thenanon-death-qualified jury. Data collected by the Capital Jury

Project shows, as noted above, that many death qualified jurors make the decision for death early

in the case, prior to the penalty phase commencing. Capital jury project. (lata also shows that a

signillcant number of death qualified jurors are actually "automatic death ,jurors" - that is, they

take the position that de~lth is either required or the only appropriate punishment in a multitude of

situations, e.g., in cases with multiple victims, in cases wherein the defendant was previously

convicted of murder, in cases in which the murder was "heinous, vile, or depraved", and in

cases in \vhich the defendant may be dangerolls in the future. The corollary of this tendency

towards pre-judgment
.
and
.
this focus "the only just punishment" is the fact that death qualified

jurors are less likely to believe in values of due process and defendant's rights than jurors who

are not death qualified. See, e.g., Bowers & Foglia, supra, at 60-65 (explaining how the death-

qualification process disproportionately produces a guilt-prone and death-prone jury through

over-exclusi0l1 of those with anti-death penalty leanings, and through under-exclusion of those

who will automatically impose the death penalty); I-laney, Hurtado, and Vega, "Modern" Death

Qual(ficafion: New Data On Its Biasing F;tTects (1994) 18 Law & l-luman Behavior 619; Cowan,

Thompson, and Ellsworth, The, f;fTects Of Death Qualtfication On .Jurors' Predisposition To

Convict And On 1'l1e Quality Of Deliberation (1984) 8 Law & Human Behavior 53; Fitzgerald

and Ellsworth, Due Process vs. Crime Control: Death Qua/Uicatiol1 And Jury Attitudes (1984) 8

Law & Human Behavior 31; Sandys and McClelland, Stack.ing The Deck For Guilt And Death:

TheF'ailul'e Of Death Qualt/ieation To E'llsure ImjJortiality (2003) (Chapter 13 in Acker, et ai's

44
America '0' Experiment JVithCapital funishl71ent 2d ed.); Blume and Johnson, Threlkeld, Probing

Life Qual[ficqtion Through E"'-:panded Voir Dire (2001) 29 Ilo1'stra L. Rev. 1209; Allen, Mabry,

and McKelion, Impact (!lJuror Attitudes About the Death Penalty on Juror Evaluations (?lGuilt

and Punishment: A 1I1eta-Analysis,22 L. & Humari Behavior 715 (1998); Young, Guilty Until
" "

Proven Innocen/;' Conviction Orientation, Racial Attitudes, and Support./()r Capital Punishment,

25 Deviant Behavior 151 (2003} Moreover, the mere experience of sitting through a death-

qualilication process - a process in 'which those who are unwilling to impose the death penalty

are excluded from serving on the jury, and ip which the death penalty is discussed at length -
I
I
itself creates and enhances a ,bias for deal\l. See. e.g., Bowers & Foglia, supra, at 65-66
i

(explaining
. how th~decith-qualification
. , proc¢ss "itself tends to convey the impression that the
I
defendant is guilty and that death is the appn1priate punishment"). The results of one mock jury

study found that

jurors may be strongly inlluenced ~y the process of death qualification and

approach the evidentiary stage of a cbminal triaL in a frame of illind that differs
significantly from that of jurors wl~o have not been exposed to the process.
Exposure to death qualification incl:eased subjects' belief in the guilt, of the
defendant and their estimate that he would be convicted. It also increased their
estimate of the prosecutor, defense attorney, ancl judge's belief in the guilt of the
defendant. The death.;.qualilication i process led subjects to :perceive both
prosecutor and judge as more strongly[ in favor of the death penalty, and to believe
that the law disapproves of people \/>,Ihp oppose the cleathpenalty. And it led jurors
to' choose the death penalty as an aplhopriate
I
punishment much more liequently
than persons not exposed to it. Thus, persons who had been exposed to death
qualification not only clillered liOln n~n-death-qualifiec.l subjects, 'but they dillered
in ways that were consistently prejudi~ial to the interests and rights of delendants.
,
I
Craig I-laney, On the Selection ql Capital .~uries: The Biasing Effect (~l the Dellth-Qual(fj!ing

I
Process, 8 L. & Human Beha\iior 121, 128-29 (1984), available at
i
http://www.springerlink.com/contentlh37p54p83p4531 h7/fulltext.pclf; see also Craig I-laney,
I

EtCl171il1ing Death Qualtficatiol1.· Further Am~lysis qj"the Process Ed/eel, 8 L. &. Human Behavior

133 (1984), available at http://www.sprin*erlink.com/contentlq38886322011 0718/fulltext.pdf.

As Justice Marshall summarized:

The perspectives on the criminal jt:lstice system of jurors who survive death
qualillcation are systematically diner~nt from those orthe excluded jurors. Death-
qualified jurors are, for example, n,lOre likely to believe that the defendant's
failure to testify is indicative of his!guilt, more hostile to the insanity delense,
more mistrustful of de1ense attorneYs, and less concerned about the danger of
erroneous convictions. This pro-pi:osecution bias is retleeted in the greater
readiness of death-qualified jurors 'to convict or to convict on more serious
charges. And, Jinally, the very pr00ess of death qualification -"- which focuses
attention on the death penalty bel'ore Jthe trial has even begun - has been found to
predispose the j1:1rors that survive it tll believe that the defendant is guilty.

LockhL7/:t, 476 U.S. 162 (1986) (Marshall, .1.( dissenting) (citing Grigsby v.Mab/y, 569 F. Supp.

45
1273, 1291-1308 (E.D. Ark. 1983) (citing studies); Grigsby v. Mabl)l, 758 F.2d 226, 233-36 (8th

Cir. 1985»; see also United States v. Causey, 185 F.3d 407 (5th Cir. 1999) (DeMoss, .1.,

. ).-36
(!.tssentll1g

135) The prejudicial dTects of death qualification could easily be avoided in this

situation through a pre-trial determination of mental retardation, whetiler by judge or jury.

Notably - anel presumably, for this very reason - in Oklahoma, the jury that is impaneled to

decide the question of mental retardation is not death-qualil'ied. See Blonner v. State, 2006 OK

CR 1, 8 (Okln. Crim. App. 2006). Removing the Atkins inquiry from the penalty phase entirely

would eliminate the biases endemic to death quali fication and ensure a more accurate ancl neutral

determination 0 f mental retardation.

Penalty Phase Juries do not understand sentencing instructions: in

particular. they fail to understand instruc!i.ons designed to allow thenz to
.li-eely consider all mitigating circumstances and the imposition of a 1(l'e
sentence:

136) lZesults from the Capital Jury Project suggest that jurors do not understand the

sentencing instr,uctions; this is especially true of instructions that are designed to allow jurors to

freely consiclerall· mitigating circumstances and the potential imposition of a life sentence.

Specifically, capita! jurors regul,arly fail to understand that the jury need not be unanimous in its

consicJeratioll0f mitigating circumstances and that mitigators need not be proved beyond a

reasonable cloubt, that the jurycan consider any circumstance as mitigating, and that aggravating

circumstances must be proved b~yond a reasonable doubt. See Bowers & ~:;'oglia, supra. Notably,

the fact, that jurors have difl'icully understanding and correctly implementing instructions is

supported by a number ofnon-CJP studies. 37

137) Capital jury project data also demonstrates that jurors fail to acknowledge their

responsibility for determining the defendant's punishment. The Unite~i States Supreme Court

warned in Calchvell v. A.1ississlppi (1985) that jurors would be reluctant to accept responsibility

36 Notably, in Lockhart, 476 U.S. 162, and Buchanan v.Kentucky, 483 U.S. 402 (1987), the Court found that the
'death qualification' of a jury did not violate the defendant's right to a jury selected from a representative cross
section of the community. This was primarily because so-called" IVitherspoon excludables" did not constitute a
"distinctive group" lor fair cross section purposes, because this group was not "arbitrarily single[dJ out" but was
rather excluded based on the state's legitimate interest in obtaining a jury that could lawfully adjudicate the penally
phase. Lockhart, 476 U.S. at 174-76. That is, the state has a legitimate interest in empaneling only one jury. This
interest does not apply, however, where the alternate filct-finder being sought is not another jury but the trial court.
In terms of costs, a pretrial hearing that would eliminate the need to death-qualify ajury would be far less expensive.
37 Haney and Lynch, Comprehending L[Fe and Death !llatfers, 18 Law & Human Behavior, 18: 411 (1994); Haney
and Lynch, Clar[!.Ving Life und Death Matters: An Ana(J'sis (!j'Instmctional Comprehension and Penalty Phase
Closing A,'gllluents, Law & Iluman Behavior 21: 575 (1997); Lynch and I-Janey, DisC/'imination and Instructional
Ccill1ljrehens;cm:Guided Discretion. Racial Bias. and The Death Pel7a/~J!. Law & l-lLlln'an Behavior 24:337 (2004);
Tiersma, Dictionaries And Death: Do Capital Jurors Understand A1itigation ? Utah Law Review 1995: I (1995);
Geimer & Amsterdam, Why Jurors Vote LiFe or Death: Operative Factors in Ten Florida Death Penalty Cases,
American .loumal of Criminal Law 15: I (1998); Haney, Sontag, & Costanzo, Deciding To Take a LiFe: Capital
Juries. Sentencing Instruct ions, "and The Jurisprudence qr Death, Journal a f Social Science Issues 50: 149 (1994) ..

46
and that the sentence vvouldbe unreliable ifjurors believed the ultimate responsibility rested with

others. TheeJ P interview instrument asked the jurors to r~nk the defendant, the law, the juror,

the jury and thejudge in terms of how responsible they were for the defendant's sentence. Over

80 l Yo of the jurors interviewed said the defendant (because of his conduct) or the law was

primarily responsible lln' the defendant's punishment. In contrast, le:ss than 6% said the

individual juror ~md less than 9 1Y!J said the jury as a whole were l11Qst responsible for that

decision. Another question in the national sample asked about how responsibility was allocated

among the jury, trial judge, and appellate judges and in the ten states where the jury decision was

binding on the judges (including Louisiana), only 29.8% believed the jury was strictly

responsible. See Bowers & Foglia, supra.

138) These results are consistent with many of the findings surveyed above

demonstrating that death qualified capital jurors have a pronounced tendency to believe that a.

death penalty is (morally or legally) required by the l~lctS of the crime, and that it is unacceptable

for the jury to exempt' a defendant from the death penalty based upon the existence of other

factors/mitigators not related to the crime. Although much of this data was gathered pre-Atkins,

the implications forA/kins determinations are obvious.

The De/ermination (~fAlental Retardation Is a Threshold Legal Determination (~l

Eligibility .fiJr the Death Penalty, Analogous to the Pre~Trial Judicial
Deterll1 ination (~(C()mpetency.

139) The Atkins determination - i.e., whether n defendant is categorically excluded

from cnpital punishment on account of mental retardation - should not be understood merely as a

l~lctual question reserved for resolution at the penalty phase. More accurately, it is a threshold

legal determination that resolves definitively whether a. defendant is or is not death eligible - a

determination similar to that of competency to stand trial or to be executed. Whether the capital

defendant is mentally retarded is a question that is unrelated to the facts of the crime itself; it is,

rather, a legal and clinical determination that establishes whether or not the death penalty IS

available in a particular case as a matter of law. As explained by Professor Tobolowsky,

In a manner similar to a competency determination, an Atkins proceeding requires

an assessment of whether proffered facts satisl')' the legal defiriition of mental
retardation adopted which, in turn, automatically determines a capital defendant's
eligibility for or exclusion from the death penalty-again without regard to any
indiviclualized assessment of the defendant's culpability for the underlying crime.
In this connection, the Atkins Court explicitly found, as part of its findings
regarding national coilserlsLls, that "our society views mentally retarded offenders
as categorically less culpable than the average offender." Unlike the role that
evidence of mental retardation plays as a mitigatingillctorbalanced against
aggravating factors in a capital sentencing determination of the requisite

47
 individualized culpability necessary for the imposition of a death sentence, the
Atkins mental retardation determination simply removes a defendant from that
determination because the Court has already made the determination that a
mentally retarded ofTender lacks the requisite culpability to be executed. In this
connection, mental retardation is not a sentencing issue-it is an eligibility for,
sentencing issue. Viewed in this way, a judicial pretrial determination of whether
proffered hlCts satisfy the legal definition of mental retardation and thus whether a
case may proceed as a capital prosecution appc<lrs very similar to a judicial
pretrial determination of whether proffered facts satisly the legal standard of
criminal competency and thus whether a criminal prosecution niay proceed.

Peggy M. Tobolowsky, Atkir1s /~fierI11ath: Ident(fjling lY1entally Retarded Offenders and

Excluding Thel71.f;·om Execution, 30 J. Legis. 77, 105-06 (2003) (footnotes omitted). The Ohio

Supreme Court has likewise held that "a trial court's ruling on mental retardation should be

conducted in a manner comparable to a ruling 011 competency (i.e., the judge, not the jury,

decides the issue)." S'tale v. Lott, 97 Ohio St. 3d 303, 306 (Ohio 2002).

140) Because mental i"etardation is a legal question of eligibility for execution, it

should not be len to the jury at the penalty phase.

Needlessly Subjecting a Defendant to a Capital Trial Although He Is Able To

Make a Prima ,Facie Case q{ lv/ental Retardation, and Hence Demonstrate J-lis
Ineligibility.fiJl· the Death Penalty, Violates His Sixth, Eighth, and F'ourteenth
Amendment Rights.

141) The unavailabil ity 0 f pre-trial j ud icial determinations of mental retardation is also

unconstitutional in thatdel'endants are needlessly subjected to the very real threat of death and to

the trauma of a penalty phase. No perSOll should be forced to undergo a capital trial without

cause. In the Double Jeopardy context, the Supreme Court has recognized "[t]he

'embarrassment, expense and ordeal' and the 'anxiety and insecurity' lated by a defendant at the

penalty phase of a ... capital murder trial ...." Bullington v. Missouri, 451 U.S. 430, 446

(1981). When there is an easy way of determining death eligibility prior to trial, forcing a

defendant through a capital trial is unconstitutional.

142) Eighth Amendment law requires capital sentencing schemes to be both

"consistent and principled" and "humane and sensible to the uniqueness of the individual."

Eddings v. Oklahoma, 455 U.S. 104, 110 (1982). Subjecting a mentally retarded person, w'ho is

necessarily statutorily, ineligible for the death penalty, to the disadvantages and trauma of a

capi tal trial certainly does not comport with these goals. Indeed, if the death penalty is

unavailable as a, matter of law" the trauma of a penalty phase is wholly without justification and

therefore an
..
"unnecessary
.
and wanton inlliction of pain." Gregg v. Georgia,
,
428 U.S. 153, 174

(1976); see also Bell v)/Vo(jish, 441 U.S. 520, 539 (1979) ("[I] I' a restriction or condition is not
, ,

48

-,
reasonably r,elated toa legitimate goal- if it is arbitrary or purposeless - a ,court permissibly may

infer that the purpose'of the governmental aelion is punishment that may not constitutionally be

int1icted upon detainees qua detainees. ").

143) It would clearly be unconstitutional to subject a fitleen-year-old to a capital trial,

given his ocher ineligibility for the death penalty. See S'tate v. Stone, 535 So.2e1 362, 363-65 (La.

1988) (granting a pretrial wri Uo prevent the im panelment 0 l' a jury for the specific purpose 0 Fa

capital sentencing hearing, because the defendant was fifteen years old at the time of the crime

and therefore ineligible for the death penalty). The same prohibition applies in this case. The

court simply lacks the power to subject an ineligible person to a capital, trial. The court must

therefore determine, before it impanels a death qualified jury and commences such a trial, that an

individual who has credibly raised the issue of his mental retardation is not, in fact, mentally

retarded.

144) Furthermore, subjecting a mentally retarded individual to a full-blovm capital trial

- notwithstanding the fact that he can prove his ineligibility for the death penalty as a matter of

law - also seriously affects trial strategies, including whether to take a plea. The threat of death

is a coercive means of pressuring a defendant to waive his Sixth Amendment right to a jury trial.

The end result is that a defendant who faces capital charges, with no mechanism for determining

death eligibility pre-trial, is vastly more likely to plead guilty in exchange for a promise of life

without parole.. See, e.g., Joseph L. Hallinan, Marcy L. Kahn, & Steven W. Fisher; Plea

IJargaining in the Slwd(}w(~lDeoth, 69 Fordham L. Rev. 2313, 2359 -2360 (2001) ("Available

empirical evidence strongly suggests that in Nevv York (as in other death-penalty jurisdictions)

the possibility of the death penalty provides defendants in potentially capital cases with a

substantial incentive to enter into plea bargains that result in the imposition of life without

parole."). The absence of a pre-trial Atkins hearing therd()l"e violates the Sixth Amendment right

to ajury trial in addition to the Eighth and Fourteenth Amendment rights to humane treatment in

the capital context.

The Denial qj' a Pre-Trial Atkins Hearing Saddles Taxpayers with the E;"(pense
and "Onerous Burden" ~lan Unnecessmy Capital ThaI.

145) The state, too, has an interest in resolving the question of mental retardation early

on so as to avoid the significant expense or a capital trial. Perhaps the most obvious and

practical reason why a pre-trial judicial determination of mental retardation is desirable is that, if

the defendant is found to be 111entally retarded at that early stage, the defendant is spared the

49
 trauma, and the taxpayers are spared the massive expense, of a capital ~rial. As the Louisiana

Supreme Court itself explained before Louisiana's statutory scheme was enacted, "The better

practice under Atkins is retlected by. the procedure of such states ... where the court makes a

pre-trial determination ofwhether the defendant is mentally retarded and thereby spares both the

State and the defendant the onerous burden of a futile bifurcated capital sentencing procedure."

Stale v. TVilliums, 2001-1650 (La. 1l/0l/02), p. 32; 831 So. 2d 835, 860.

146) As recognized by courts, legislatures, academics, and individuals within the law

enforcement community, there are substantial and obvious practical benefits to a pre-trial

determination. See, e.g, United 5'tates v. Nelson, 419 F. Supp. 2d 891 (B.D. La. 2006)

("[O]verriding practical considerations dictate that the Atkins issue be resolved up fJ.-ont. Ifprior

to trial a defendanUs found to be mentally retarded and therefore ineligil;>le for the death penalty,

significant resources are saved in terms of trial preparation, motion practice, voir dire, trial time,

mitigation research, etc. To defer the Atkins/mental retardation issue until after such a resource-

intensive trial would be vvasteful in a situation like the instant case, in which the defendant, from

the moment he first raised the Atkins issue, appeared able to make a colorable Atkins claim.");

Stale v. Flores, 93 P.3d 1264, 1269 (N.M. 2004) ("[A] capital trial consumessigniJicantly more

resources than a noncapital tri.al and ... it would be bendicial to all parties to resolve the

question wheth~r the defendant is ineligible for the death penalty as early in the proceedings as

possible. . . . [A]llegations of aggravating circumstances pervade every stage of a capital

prosecution; ... capital prose~utions involve tremendous hardships in terms of time, emotion,

energy, and expense; .' .. the State's entitlement to a death-qualified jury may give the State a

strategic advantage in both the guilt-innocence and the sentencing phases of the trial; and ...

,capital prosecutions m'e uniquely complex and consume significantly more judicial resources

than noncapital prosecutions. Because of the extraordinary nature of capital prosecutions, every

etTort must be made to'avoida death-penalty trial, as early in the proceedings as possible, where

capital punishment is precluded as a matter of law" (citations omitted).); lvlorrow v. State, 928

So. 2d 315, 324 (Ala. Crim. App. 2004) ("[W]e encourage defendants to raise, and trial courts to

resolve, mental-retardation issues bef()re trial if at all possible ill oreler to avoid the burden and

expense of a bifurcated capital trial."). See also Carol S. Steiker and Jordan M. Steiker, Atkins v.

Virginia: Lessons From Substance and Procedure in the Constitutional Regulation of Death, 57

DePaul L. Rev, 721, 727 (2008) ("If the determination of mental retardation is made pretrial,

50
substantial costs associated with capital litigation can be avoided."); James W. Ellis, Mental

Retardatiofl and the Death Penalty: J1 Guide to ,)'tate Legislative Issues, 27 Mental & Physical

Disability L. Rep. 11, 14 (2003) ("Most ofthe States that have enacted legislation have chosen to

have the issi.le addressed, in the l1rst instance, in pretrial proceedings. This makes sense for a

number of reasons. Most importantly, if the defendant has mental retardation, and therefore is

ineligible for the death penally; pretrial resolution of the issue saves the State the cost of an

unnecessary capital trial. (It is universally recognized that capital trials are vastly more expensive

to conduct than noncapital trials.)" (footnotes omitted).). S'ee also Part LB, supra (describing

legislative history on economic reasons for instituting pre-trial hearings). These practical

considerations clearly weigh in favor of a pre-trial determimUion of mental retardation where, as

here, a capital defendant raises a non-frivolous Atkins claim.

Conclusion: Penalty Phase DelerminatioT7s qrMenlal Retardation Are Inadequate

To Protect the Rights qj'Mentally Retarded Capital Defendants Under Atkins.

. 147) The list of reasons, detailed above, why penalty-phase determinations of mental

retardation are unreliable ami prejudicial is too long and too serious to be ignored. Given the

obstacles to an impartial penally-phase determination of mental retardation, it is not surprising

that the number of capital juries entrusted with this decision that have actually found the

defendant to be mentally retarded is astronomically small - indeed, after Atkins, it is non-

existent. Aner exhaustive searches of LexisNexis and conversations with practitioners in every

death penalty jurisdiction, Mr. Anderson's counsel has been unable to identify a single jury post-

Atkins that conclusively jhund a defendant to be men/ally retarded. At least five jury

determinations that the defendant \vas not mentally retarded have, however, been reversed on

appeal. See State v. Locklear, 363 N.C. 438, 443-445 (2009) (reversing jury finding ofna mental

retardation due to instructional error); Atkins v. Comnwl1wealth, 272 Va. 144, 147-48 (2006)

(reversing jury finding of no mental retardation on account of trial errors and remanding for Ilew

hearing); Lambert v. 5'late, 2005 OK CR 26 (Okla. Crim. App. 2005) (on sufficiency 0 l' the

evidence, vacating post-conviction jury determination of no mental retardation and sentencing

defendant to life in prison); Salazar v. State, 2005 OK CR 24 (Okla. Crim. App. 2005) (reversing

the jury's determination 0 l' no mental retardation on ineHective assistance of counsel, expressing

a lack of "confidence in the jury's verdict that Petitioner is not mentally retarded," and vacating

the death sentencing and modifying it to life without parole, without ordering a new jury

determination of mental retardation); Pickens v. State, 2005 OK CR 27 (Okla. Crim. App. 2005)

51
(finding that jury's finding of no mental retardation was "not supported by competent evidence

and no rational jury could have reached the same conclusion"). The life-or-death decision of

whether a capital defendant is mentally retarded should not - and, under the Eighth and

Fourteenth Amendments, must not - be entrusted to a death-qualified jury at the penalty phase of

a capi tal trial.

148) Accordingly,' the state of Louisiana has failed in its duty Ulider Atkins to develop

an "clpprojJl'iote way[] to enforce the constitutional restriction upon its execution of sentences."

Atkins, 536 U.S. at 317 (quotation omitted) (emphasis added). Its procedures invite unreliable

decision-making and arc patently inadequate to guarantee the "substantive restriction on the

State's power to take 'the life ora mentally retarded offendcr." [d. at 321 (quotation and

quotation mark omitted) (emphasis added). For these reasons, La. C. CLY. 905.5.l(C)(l), which

grants a capital defendant a' pre-trial hearing on mental retardation only with prosecutorial

consent, violates Arkins and the Eighth Amendment to the ConstitLltion of the United States.

v: The Distdct Attorney's blanket policy of vetoing lu'c-tdal Atkins hearings violates
thc constitutional separation of p(nvcl's principl<l~ and runs contrary to the Icttcr and
spirit of the hiw '

Ol;ei'vielV

149) Louisiana's statute governing the procedures for determinations of mental

retardation in capital cases grants unfettered discretion to the district attorney to veto the

defendant's request for a pre-trial Atkins hearing, The statute reads, in relevant portion:

The jury shall try the issue of mental retardation of a capital defendant during the
capital sentencing hearing uhlesi,' the state and the defendant agree that the issue
is to be tried by the judge. !f" the srate and the defendant agree, the issue of
mental retardcltion of a capital defendant may be tried prior to trial by the judge
alone.

La. C.CLP. 905.5.1 (C) (l)(emphasis added). Mr. Anderson challenges both the constitutionality

of this prosecutorial veto power over the defendant's access to a critical procedural stage of a

capital case, and the Orleans Parish District Attorney's method of exercising that veto in

practice. Specifically, the' Orleans Parish District Attorney's Office has capriciously and without

lawful authority established a blanket policy of refusing to agree to pre~trial hearings on mental

retardation. The end result is that capital defendants - even those, such as Mr. Anderson, with

meritorious Atkins claims - uniformly have no access to pre-trial hearings on mental retardation.

150) ,There are three main problems with the statutory veto and the district attorney's

corresponding policy. First, the statute unconstitutionally delegates l,egis]ative power to the

district attorneys by granting them broad discretion over the availability of procedural

2
protections for capital defendants, vvithout giving adequate guidance on how that discretion

should be exercised. 'Second, the Orleans Parish District Attorney's Office ignored what

guidance it was given and instead unconstitutionally usurped the legislative role by establishing a

blanket policy against pre-trial determinations. Third, as a statutory matter, the district attorney's

office abused its discretion by establishing the blanket policy where individualized consideration

was required. For each and all of these reasons, the denial of Mr. Anderson's request for a pre-

trial determination of mental retardation, in deference to the prosecution, was in error.

The Grant (?lUnbridled Discretion to the District Attorney to Veto a Pre-Trial

Atkins Hearing Constitutes an Unconstitutional Delegation (dLegislative POlFer.

151) The separation of powers principle is enshrined in both the' United States and the

Louisiana Constitutions. See U.S. Canst. Arts. 1- Ul; La. Canst. Art. 11 § 2. From this principle,

federal and state courts have derived the nondelegation doctrine. See, e.g., A. L. A. Schechter

Poultry Ccjrp. v. United States, 295 U.S. 495, 537-38 (1935); State v.. Miller, 03-0206 (La.

10/21/03); 857 So. 2d 423, 426. The federal nondelegation doctrine forbids the legislature from

clelegatingtraclitionally legislative powers to another branch of government and granting

"unCettereddiscretion" in the exercise of those powers. See, e.g., Schechter, 295 U.S. at 537-38.

Congress must "lay down by legislative act an intelligible principle to which the person or body

authorized to [exercise the delegated authority] is directed to conform." Mistretta v. United

Stqtes,488 'U.S. 361, 372 (1989) (quotation omitted). "It will be 'constitutionally sufficient if

Congress clearly delineates the general policy, the public agency which is to apply it, and the

boundaries oLthis delegated authority.'" ld. at 372-73 (quoting American Power & Light Co. v.

l-\'EC, 329 U.S. 90, 105 (1946)).

152) Similarly, the I~ouisiana Supreme Court has created a' three-pronged test to

determine whether a statute unconstitutionally delegates legislative authority to an administrative

agency. In State v. All Pro Paint & Body Shop. Inc., the Court ruled that a delegation of

legislative power is constitutional if: "the enabling statute (I) contains a clear expression of

legislative pOlicy; (2) prescribes sulTicient standards to guide the agency in the execution of that

policy; and (3) is accompanied by adequate procedural safeguards to protect against abuse of

discretion by the agency." 639 So. 2d 707, 712 (La. 1994). Applying this test in State v. Miller,

the Louisiana Supreme Court invalidated a catchall provision of a statute pertaining to the

introdllCLion ari.d possession of contraband in state prisons on the ground that, inter alia, it was

"ul1constittitional uncler the separation of powers doctrine as all improper delegation of

53
legislative authority." 1d. at430, pp. II :-12. The Court explained that the catchall provision

vests the governing authority of the parish jail with the unfettered authority to
determine what is or is not contraband. . . . IT]his catchall pJ:ovision would
delegate to the sherin: an executive member of local government, the authority to
perform a legislative function. Moreover, the provision provides absolutely no
standards by which the pm,ver delegated is to be exercised and renders the
delegation completely unfettered. We find that a grant of such authority is clearly
invalid under our constitution and the separation of powers doctrine.

ld. at 43.1. SeG also. e.g., Stale v. Rodriguez, 379 So. 2cl 1084,1086 (La. 1980) ("[T]he

legislature [must] establish by statute standards for the guidance of the executive or

administrative body or officer empowered to execute the ICl\'V . . . . [W]here a statute vests

arbitrary discretion in a board or an official without prescribing standards of guidance there is an

unconstitutional delegation of legislative authority to the executive branch of the government.");

Schweg17lUmi Bros. Giani Super/l,dkls. v. McCrOlY, 237 La. 768, 789 (1959) ("Undoubtedly the

legislature must declare the policy of the law and fix the legal principles which are to control in

gi ven cases; but an administrative body may be invested with the power to ascertain the facts and

conditions to which the policy and principles apply.").

153) Like the statute at issue in Aliller, the Louisiana statute implementing Aikins

constitutes a "completely unfettered" grant of legislative power. The decision whether to alford

capital defendants pre-trial Aikins hearings is, of course, a legislaliveclecision. 38 Indeed, the

Louisiana Supreme Court has specifically recognized that "[e]nacting procedures for punishment

is a legislative function." Stale v, Louviere, 833 So. 2d 885, 893 (La. Sept. 4,2002) (citing Slate

v. Jones, 94-0459, p. 16 (La. 7/5/94) 639 So. 2d 1144, 1155). La. C. Cr. P. 905.5.1 grants

prosecutors the. power to make this legislative decision with respect to the nature of the

procedures available to capital defendants without meeting any of the requirements set forth in

All Pro Paint. The statute requires, without elaboration, that the state I11l1St "agree" to a pre-trial

Atkins hearing. It does not "containl] a clear expression of legislative policy"; it does not

"prescribe[] sufiicient standards to guide the [district attorney] in the execution of that policy";

and it is not "accompanied by adequate procedural safeguards to protect against abuse of

discretion by the agency." All Pro Paint, 639 So. 2d at 712. So unfettered is the discretion given

38 The judiciary is also involved in establishing such procedures. The Supreme Court has supervisory authority
to "establish pr(JCedural ... rules not ill conflict with law ...." La. Const. Art. V, § 5. See also Stale v. IVilliams,
831 SO.2d 835, 858 (La. Nov. ·1, 2002) (establishing, post-Atkins, procedures for determinations ·01' mental
retardation "ITlnthe interim' between this opinion and legislative action on the subject"). The Courts, likewise, have
authority to interpret the 'Constitution and laws of the state and the nation. Unwired Telecom Corp. v. Parish (!(
Calcasieu, 903 So. 2d392, 405 (La . .Ian. 19,2005). The district attorney, although his office technically falls within
the scope 0 I' the judicial branch, see La. Const. .Art. V, ~26, does not exercise the judicial power of the courts. See
La. Const. Art. V, ~ I ("The judicial power is vested in a supreme court, courts of appeal, district courts, and other
courts authorized by this Article.").

54
to the prosecutor that the Orleans District Attorney's Office has seen fit to institute a blanket

policy against such pre-trial hearings.

154) Because the statute places the availability of a pre-trial hearing within the

unfettered discretion of the district attorney, it constitutes an unconstitutional delegation of

legislative authority in violation orthe separation of powers doctrine.

Even Il the Legislature '8 Delegation TFas Constitutional, the District AUorney
E;rceeded Its Delegated Authority and Uswped the Legislative Function By
EstablishiTig a Policy Against Pre-Trial Determinations.

155) L~ven assuming, arguendo, that the legislature did provide sufficient guidance to

the district attorneys "such that the delegation 0 f power is constitutional, the manner in which the

Orleans Parish District Attorney's Office has exercised its statutory discretion still violates the

Constitution. The district attorney has ignored what guidance the legislature did give it and has

usurped the legislative role by instituting a blanket pol icy against pre-trial determinations, rather

I
tlan · tenng
constc · eac I1 case on
. 'Its own merIts.-
.3l)
Indeed, the prosecutor in this case stated

unequivocally on the record that "FIt is a policy of the District Attorney's OUice not to have

pretrial Atkins Hearings, period." Atkins Hearing, Tr. 6.

. 156) If any guiding principle can be identified from a reading ofthe statutory language

and legislati\re histo'i'y of La. C.Cr.P. 905.5.1, it is that the Louisiana legislature intended to vest

discretion in the state's distri~t attorneys to agree to or to refuse pre-trial determinations of

mental retardation b"ased 0/1 the circumstances (~lthe individual case. The legislature did not see

lit to impose a blanket policy regarding the availability of pre-trial hearings in all cases. As

noted above, by Louisiana law,

The jury shall try the issue of mental retardation of a capital defendant during the
capital sentencing hearing unless the state and the d~lendant agree that the issue
is to be tried by the judge. {f the state and the d4endant agree, the issue of
rilental retardation of a "capital defendant may be tried prior to trial by the judge
alone.

La. C.CLP. 905.5.1(C)(I) (emphasis added). While these words do not give the prosecutor

guidance about how to exercise his discretion, they do at the very least clearly require that in

individual cases, the prosecutor shall determine v,;!lether, in his opinion, it is appropriate to

decide the issue of mental retardation prior to trial, and shall agree to such a pre-trial hearing in

39 I f the state argues q1at the legislature legitimately delegated guided discretion to the district attorneys, its
blanket policy is indefensible. Conversely, if the state argues that by imposing a blanket policy it was merely
exercising its statutory unbounded discretion to make generally-applicable policy decisions about the availability of
pre-trial Aikins hearings, the more incontrovertible the conclusion the Louisiana legislature has violated the
nondelegatioh doctrine by giving unguided legislative authority to the district attorneys. Either way, a constitutional
violation is clear.

55
those cases in which he deems it warranted.

157) This rather obvious interpretation 0[' the statute's lext is co rEO borated by a revieyv

of its legislative history. Prior to the statute's entlctment, proponents of the legislation and

representatives from the Louisiana District Attorneys Association testified before both the House

of Representatives and the Senate, assuring legislators that, in cases in which there was pre-arrest

evidence of mental retardation, the question of mental retardation would, as a practical matter, go

to a judge pre-trial. At the House hearing, IZepresentative Emma Devillier, the bill's sponsor,

stated:

In those cases where ... the person has had a history since kindergarten of being
diagnosed with mental retardation, he's had special ed., has had all this history of
... mental retardation, when they go to the DA with that kind of file, the DA is
going to ... agree, quite frankly, I believe .... to have that done pretrial, because
they don't want to spend the expense. They have no incentive whatsoever to have
a death penalty case, to go through all that expense ... , They have an incentive
to do it in the most judicious manner. So they would agree in those cases. But in
those cases where they clo not believe that that is going to be ... areal issue, ... it
will go to the jury, ... and they will have ... the guilt phase ancl they will have a
penalty phase and that will all go to the jury.

Statement 0[' Rep. Devillier, May 21,2003 (Hearings on HB 1(17), at Tr.6. She reiterated that

position during the House Chamber proceedings on May 28,2003:

[T]he bill provides for if th~ district attorney ancl the criminal defense attorney
agree, then [a hearing on mental retardation] can be held pretrial for the judge.
What will happen in those cases ... is when the DA gets a file and he sees that
there's, you know, a multitude of proof that ['rom first grade on, pre-arrest, this
person has a history of mental retardation, the DA will agree to have that
determined pretrial.· ... The DA's - when there's competent evidence pre-arrest
to say that this person is mentally retarded, that hearing will be held pretrial, but
when all of the evidence is post-arrest, in other words there hasn't been one iota
0[' evidence before this guy was arrested that he has mental retardation, it's all
based on hired experts who now say he's ... got mental retardation then the DA
may want to have, r mean, there's gonna be some question there about whether or
not that's true, and that then would go to the jury. .

Statement of Rep. Devillier, May 28, 2003 (Hearings on lIB 1(17), at 4:06 - 5:20 of Video

Recording, Ex. _.

158) Hugo Holland, a representative (president?) of the Louisi~na District Attorneys

Association, testifiedsimilarly:

Practically speaking, when a defense lawyer presents the district attorney with
pre-arrest evidence that his client is mentally retarded, eve,)! prosecutor in this
state 11'ill take notice. Pre-arrest evidence obviously holds a much higher degree
of reliability than some post-arrest concoction by a defense expert. Further, pre-
an:est evidence is likely from a completely unattached and disinterested source
such as a school or melltal {acility. If the school or such other, such disinterested
J~lcility has accurately documented the person's deficient IQ, accurately details
their deficits and adaptive functioning and it manifested before the proper age,
thaI sort (~l evidence H'ill undoubtedly be submil1ed to the judge in a pretrial
hearing such that a simple determination (?f mental retardation can be made and

56

u~~_
 the case proceed as a second degree murder. However, it's the post-arrest claim
of inental retardation, all established by hired defense experts which probably
should, and rightly should, go to the jury.

Statement of Hugo Holland, May 21, 2003 (Hearings on lIB 1017), at 1'1'. 23-24 (emphasis

added). Thomas Walsh, another representative from the DistrictAttorneys Association, testified

similarly before the Senate:

Now, 1 would like to point out the practical aspect of this is, if a defense counsel
comes to us and says, ... our defendant is mentally retarded ... , what we're
going to do is s'ay, ...bring us ... the data which shows that, we'll present it to
our expert. If our expert agrees, we're not going to seek a death penalty on that
individual. ... If there's some question about it, we can agree to take it before a
judge in a pretrial matter.

Statement of Thomas Walsh, May 6, 2003 (Hearings on SB 644) at Tr. 12-13. The

representations made by the bill's sponsor and by the District Attorneys Association could have

led legislators to only one conclusion about the statute that they ultimately agreed to enact: that it

authorized prosecutors to veto a pre-trial hearing on mental retardation. in cases in which there

was ins/!fficient pre-arrest evidence (?lmental retardation to justify such a hearing.

159) Notwithstanding this legislative history, the Orleans Parish District Attorney's

Onice has tak,en a markecllydifferent approach - one that contravenes the letter and spirit of the

law and violates the constitutional separation of powers doctrine. On the same day that Mr.

Anderson's, pre-trial Atkins hearing \vas scheduled, the district attorney withdrew his agreement

to a pre-trial hearing and stated, on the record, in the most unequivocal terms: "It is a policy of

the District Attorney's OnJce not to have pretrial Atkins j-learings, period." Atkins I-Tearing, 1'1'.

G.

160) Needless to say, a blanket policy against pre-trial Atkins hearings is a far cry from

the serious contemplation of the merits of an individual capital defendant's claim that the statute,

along with its legislative history, demands. The refusal to agree to a pre-trial hearing in this

particular case is telling. Defensecounsel for Mr. Anderson asserted that Mr. Anderson hadpre-

arrest diagnoses of mental retardation. Armed with these early diagnoses, the defense was

hardly making a frivolous claim under Atkins; quite the opposite was true. As Mr. Holland

testified before the House, "Pre-arrest evidence obviously holds a much higher degree of

reliability than some post-arrest concoction by a defense expert," and "pre-arrest evidence is

likely fl-om a completely unattached and disinterested source such as a school or mental facility."

Nevertheless, contrary to the assu~'ances that Mr. Holland gave the legislature that "that sort of

evidence will undOLlbtedly be submitted to the judge in a pretrial hearing," the district attorney's

57
office failed to consider the merits of Mr. Anderson's individual claim of mental retardation and

instead automatically vetoed his request for a pre-trial hearing and reserved the question for the

penalty phase.

161) Inlight of the district attorney's refusal to agree to thept:e-trial Atkins hearing,

Judge Lynda Van Davis reluctantly denied the defense motion, telling the defense, "I totally

agree vvith your posi~ion on this matter but I have to follow what the statute says. Section

905.5.1 that addresses mental retardation says it shall be tried to the jury unless both sides agree.

They are clearly objecting to having this be tried before the Court." Atkins I-Iearing, Tr. 10.

Respectfully, Mr. Anderson disagrees with the Court's conclusion. The district attorney did not

exercise the irtdividualized discretion required by law; he instead made a legislative

determination that pretrial hearings are never appropriate, in direct contravention of the

legislature's directive. The refusal to consider whether Mr. Anderson's Atkins claim - or that of

any other capital defendant in Orleans Parish - warranted consideration by the judge pre-trial

was an unconstitutiona~ usurpation of the policymaking authority of the legislature.

The District Affo]'J1ey Abused His S'tatutorUy Granted Discretion and Violated Mi'.
Anderson's Due Process Rights By Establishing a Blanket Policy Against Pre-
Trial Determinations oflYfental Retardation.

162) At the very least, the district attorney's imposition of a blanket policy constitutes

an abuse of statutorily-granted discretion that has deprived Ivir. Anderson of his due process right

to an individualized decision on the availability of a pre-trial hearing. Where a statute vests

discretion in a decision-:-maker - whether a judge, a district attorney, or some other state actor -

that decision-maker niust exercise that discretion: he must, in other words, apply general

principles to the specific facts of each individual case. The institution of a blanket policy is, per

se, an abuse of discretion - it .is a 1llilure to exercise discretion at all.

163) For example, the Louisiana Supreme Court has held that

[w]here the legislature has established a wide range of sanctions for improper
conduct, ajudge vested with discretion in choosing which of those sanctions he
will impose in ;a given case cannot be permitted to impose uniformly the most
severe penalty in all cases. Such a policy constitutes a hlilure to exercise judicial
discretion.

Slate ex reI. Robertson v. Alagg;o, 341 So. 2d 366, 370 (La. 1976). The Fifth Circuit came to a

similar conclusion in United States v. fJqr(fc)rd, and explained:

[Tlhe re~ord in the instant case reveals an abuse of judicial discJ:etion by a clear
showing that the judge pursued a rigid policy of imposing the maximum sentence
.for a particlilar category of offenses, namely narcotics violations. . . . Such a
policy is under no reasonable conception an exercise of judicial discretion. [Al

58
 trial court which fashions an innexible practice in sentencing contradicts the
judicially approved policy in favor of individualizing sentences.... Not only is a
mechanical sentencing formula an abdication of judicial responsibility, but it also
runs counter to the considered judgment of Congress in prescribing a non-
mandatory maximum sentcnce. . . . [8]y routinely entering the maximum
sentence, without considering relevant factors, the court failed to exercise that
high,order of discretion to fit the sentence to the crime and to the defendant, and
thereby failed to abide by the implied congressional mandate to frame the
punishmcnt to address the particular circumstances of the individual defendant.

United 5'tales v. Ilart.{ord, 489F.2d 652, 655-56 (5th Cir. Fla. 1974) (vacating the sentence and

remanding for l'esentencing) (internal footnotes, quotations, and quotation marks omitted).

Conversely, Louisiana's Fourth Circuit Court of Appeals has explained that where thec1istrict

attorney can clemonstrate that his office does exercise statutorily-granted discretion by

considering the facts. of individual 'cases, there is no per se abuse of discretion. See Slale v.

Hawkins, 508 So. 2d 925, 925-926 (La.App. 4 Cir. 1987) (concluding that the district attorney's

olTice did not fail ~o exercise discretion in deciding when to apply La. R.S. 15:529.1 (multiple

bill statute»; State v. Gray, 461 So. 2d 389 (La. App. 4th Cir. 1984) (holding that because

"multiple billsare not tiled in all cases and that certain considerations are taken into account in

all cases,'~district attorney did notl'ail to exercise discretion granted by statute).

164) Otber courts outside of Louisiana have likewise held that the imposition of a rigid,

blanket policy where. a statute calls for discretion is an abdication of that statutorily-granted

discretion. 5'ee, e.g.., Peoplev. Palrick, 233 Ill. 2d 62, 74-75 (2009) ("[T]he trial court abused its

discretion, by refusing to exercise any specific discretion. . . . [T]he court's application of a

blanket policy of relilsing to rule on all motions in limine on the admissibility of prior

convictions until after a defendant's testimony amounted to an abuse of discretion."); Slale v.

Flesdllllan, 2008 Tenn. Crim. App. LEXIS 967 (Tenn. Crim. App. Dec. 8, 20(8) (where the

statute calls for an individualized determination, the district attorney general's "blanket denials

of diversion based upon .the offense committed have been rejected as, improper"); Slate v.

CarIeI', 706 N.E.2d409 (Ohio Ct. App., Clark County 1997) ("We find that the trial court's

policy of not accepting no-:contest pleas constituted an abuse of discretion in that the trial court

arbitrarily refused to consider the facts and circumstances presented, but instead relied on a fixed

policy established at its whim ... Although the trial court has the discretion to rehlse to accept a

no-contest plea, it must exercise its discretion based on the facts and circumstances before it, not

on ablanl<.et policy that alTectsall defendants regardless of their situation..In short, the trial court

must exercise its discl'etioll in each case."); State v. Markham, 755 S. W.2d 850, 853 (Tenn.

59
-- -')
Crim. App;1988) ("[The .district attorney general's d.lenial of diversion based only on the

essential elements ofa crime, without judicially weighing all relevant factors, effectively

excludes persons charged with that crime !I'om consideration fiJr pretrial diversioll. Only the

legislature has that prerogative.").

165) It could 110t be clearer that in this case the district attorney has imposed a blanket

policy in place of the discretion that he is required, by statute, to exercise. The assistant district

attorney in this case stated, on the record, that "[i]t is a policy of the District Attorney's Office

not to have pretrial Atkins Hearings, period." Atkins Hearing, 1'1'. 6. The· state has abdicated its

statutory discretion and in doing' so has denied Mr. Anderson his due process right to an

individualized determination of his eligibility for a pre-trial hearing on mental retardation.

VI. Thc statutol"Y definition of mcntall"ctanlation is uncollstitutiolUlIIy vague·

Overview

166) A vague sentencing factor renders a death sentence unconstitutional. "[A] vague

propositional 1~1Ctor used in the sentencing decision creates an unacceptable risk of randomness,

the mark of the arbitrary and capricious sentencing process ...." Tuilaepa v. CaltfiJrnia, 512

U.S. 967, 975 (1994). Louisiana's definition of mental retardation, which in its language mirrors

the clinical definitiOl1"

.
of mental retardation adopted by the AAMR (now. ,AAIDD) and the APA,

but which is in no way explicitly linked to that clinical definition by the terms of the statue, is

unconstitutionally vague. Mr. Anderson is therefore entitled to a ne\vsentencing phase with

proper instructiol1s to the j ury designed to overcome the vagueness 0 f the statutory detlni tion.

167) The touchstone of vagueness in the capital sentencing context is \vhether the

sentencing factor has a "common-sense core of meaning . . . that criminal juries should be

capable ofunderstandilig." Tuilaepa, 512 U.S.at 975 (quoting Jurek v. Texas, 428 U.S. 262, 279

(1976) (White, .I., concurring in judgment»; JOlles v. UnUed ,-,,'tates, 527 U.S. 373,400 (1999). A

statute is vague if "[t]he words and phrases in the statute are . . . olltside the common

understanding of a juror, ... [or] so technical or ambiguous as to require a specific definition ...

" United States v. Johnson, 575 F.2d 1347, 1357-1358 (5th Ci1'. Fla. 1978) (citations omitted).

Moreover, a criminal statute "must not contain a standard so vague that ...the factfinder is

unfettered by any leg<.1l1y Dxed standards." State v. Tumer, 936 So. 2e1 89, 100 (La. July 10,

2006) (citingStqle v. Boyd, 97-579, p. 3 (La. 41I4/98), 710 So. 2d 1074,];076».

168) The definition of mental retardation in the statute uses both overly general terms

60
that do not adequately feller the jury and complex, technical terms outside the common

understanding of a juror. It reads as follows:

"Mental retardation" is a disability characterized by significant limitations in both

intellectual functioning and adaptive behavior as expressed in conceptual, social,
and practical adaptive skills. The onset much occur before the age of eighteen
years.

Notably, none of the terms in.this .statute - "disability," "significant limitations in intellectual.

functioning," "adaptive behavior," "conceptual," "adaptive skills," etc. - are defined, described

or limited anywhere in the statute. The language in the statute is a mix of relatively common and

generaltenns variously understood by the public (disability, intellectual functioning, skills,

onset) and clearly technicaltermsto which a typical jury will have had no exposure (e.g.,

"adaptive behavior").

169) In reality and lor the purposes of the Eighth Amendmerit, all of these terms are

meant to have a very speci

, fic meaning. The Supreme Court in~ deciding Atkins
. v. Virginia and the

Louisiana legislature in enacting La. C.CLP. art. 905.5.1 relied heavily upon established clinical

definitions of mental retardation. Atkins citecl approvingly the then-current clinical definitions

enunciated by the AAMR and the APA. The central portion 0 f Louisiana's statutory language

tracks, almost precisely, this clinical language. Compare La. C.Cr.P. Art. 905.S.1(H)(l)

("'Mental retardation' means -a disability characterized by significant limitations in both

intellectual functioning and adaptive behavior as expressed in conceptual, social, and practical

adaptive skills. The onset must occur before the age of eighteen years."); with AAIDD,

Intellectuol Disability:' Definition, Class(jication. and :Systems £?t'Supports, 5 (11 th ed. 2010)

("Intellectual disability is characterized by significant limitations both in intellectual hmctioning

and in adaptive behavior as expressed in conceptual, social, and practical adaptive skills. This

disability originates before age 18."); and American Psychiatric Association, DSM-IV-TR, 41
i
ed. 2000) ("The essential feature of Mental Retardation is signific~ntly subaverage general
th
(4

intellectual functioning ... that is accompanied by significant limitations in adaptive functioning

in at least two ... skill areas .... The onset must occur before age 18 years."). Moreover, and

critically, the Louisiana Supreme Court in State v. IYilliums ruled after Mr. Anderson's trial that

Louisiana's statutory definition of mental retardation "is equivalent to the standard articulated in

the DSM-lV. Both standards require a two-pronged finding of: significant subaverage

intellectual function and significant limitations in adaptive functions; and both require an onset

age under 18 years, because mental retardation is by definition a developmental disorder that

61
must manifest itself 'at the developmental stages of life." State v. lYilliams, 2007-1407 (La.

10/20109), p. 17-18; 2009 La. LEXIS 2973.

170) The intended l11e~1I1ing of the statutory definition, is ther~fore clear even if its

l~lilure to delineits terms or incorporate the scientific definitions is not --. it is equivalent to the

clinical definitions of mental retardation put forward by the American Psychiatric Association

and the AAIDO (which are essentially the same). Both of these organizations regularly publish

lengthy manuals that detine and explain the terms used ill. the basic clinical definition with great

detail and precision. The AAMR manual that was in place at the time of the passage of the act

allots forty-eight pages to the question ofthe meaning and <;lpplication of the basic definition; the

Dsrvl-IV -TR, moreeconomically, allots eight pages.

171) Capital juries in Louisiana, however, are not told of this equivalence, nor of this

resollrce 101: purposes of interpretation, and are therefore len to make their own sense of the

jumble of COnll110n and technical words in the statute. The jury's decision-making on the point of

mental retardation, therefore, is almost utterly unguided, ancI therefore unconstitutionally vague.

172) Because Atkins and La. C.Cr.P. art. 905.5.1(H)(l) set 10rth delinitions of mental

retardation that are rooted in science, not common sense, judges and jurors must receive clinical,

scientific guidance in order to eJIectively fulfill their constitutional obligation to spare a mentally

retarded capital defendant from execution. It simply is not enough to provide lay decisionmakers

with a clinical de.finition and expect them to accurately apply it. The AAIDD has explained the

tremendous importance of utilizing "clinical judgment" when diagnosing individuals with mental

retardation - "a special type of judgment rooted in a high level of clinical expertise and

expe"rience" that "emerges'directly from extensive data ancl is based on training, experiences, and

specilic knowledge of the person and his or her environment." AAIDD at 85. In fact, "the

AAMR has noted that 'mental retardation is not susceptible to evaluation by non-experts, and the

disability only can be rissessed through scientific tests administered by experienced professionals

in the field using their training, experience, and clinical judgment.'" Penny J. White, Treated

Dtfrerent~)l ill Life but Not in Death: The E.xecution (~lthe Intellectually Disabled /Vier Atkins v.

Virginia, 76 Tenn. L. Rev. 685, 706 (2009) (ciling Brief for American Association on Mental

Retardation as Amici Curiae at 21, State v. Arellano, 143 P.3d 1015 (Ariz. 2006) (No. CV-05-

0397-SA)). See also White, supm, at 706 ("Without question, accurate professional assessment

of adaptive behavior limitations is essential to a fair evaluation of a claim of mental retardation.

62
 Judges are ill-equipped to make these assessments on their own" (t()Otnote omitted).).

173) Tn Mr. Anderson's case, the jury was in no way informed that the definition was

medical in nature - that it had a particular meaning in a clinical setting, and that the definition

was not governed by the jurors' own lay understandings about the meaning of mental retardation.

This absence of guidance is particularly concerning here because with only a technical, and

vague, definition to apply, judges and jurors alike t~lll back upon stereotypes. They

sometimes use their own opinions about the significance of an individual's

strengths to trump standardized measures of adaptive behavior and professional
clinicaljudgmcnt.For example, courts routinely use the fact that a defendant can
drive, marry, procreate, maintain relationships, work, or count as a basis for
concluding that, despite scientific evidence to the contrary, the defendant does not
sulTertl·om sullicient limitations in adaptive behavior to satisfy the definition of
mental retardation.... As a result, court findings reIlect the stereotypical view
that' mentally; retarded individuals must be "utterly incapable. of caring for
themselves, potentially dangerous, and 'unfit' to reproduce,", as \vas once
believed.

White, supra at 702-703 (footnotes omitted).

174) The problem was capitalized upon in the present case by the prosecution, which

declined to present its own expert evidence and relied on a series of arguments at penalty phase

th~lt nlll directly counter to the science and practice of diagnosing ,mental retardation. For

example, the prosecution alleged that an lQ of 70 was required for a finding of mental

retardation; both the APA and the AAIDD make unquestionably clear that this is not the case.

The prosecution also alleged that the derendant was not mentally retarded because he could, inter

alia, ride a bike, brush his teeth, go to clubs, and load a gun. Again, both the APA and the

AAIOO have made unquestionably clear that isolated capacities and strengths cannot and do not

outweigh established, chronic weaknesses for diagnostic purposes. "[l]n the process of

diagnosing 10, significant limitations in conceptual, social, or practical adaptive skills are not

outweighed by the potential strengths in some adaptive skills." AAIDD, supra, 47.

175) Given the absence of any indication in the statute that the definition is bound by

scientific analysis and best practices, the prosecution in this case was free to very explicitly and

consciously inform the jury that the statutory definition of mental retardation is nol a clinical and

scientific one in relation to which they needed to consult expert practices and advice. "It doesn't

matter what Dr. Swanson thinks. It doesn't matter what any other doctor that comes in here

thinks," said the prosecution. "It matters what you think." Closing Arguments Tr. 33. 40

Such prosecutorial disavowal of the scienti lic nature of the mental retardation diagno~is has precedent in
'10
Louisiana capital cases, further demonstrating the failing of the deFinition, In Slale v, Lee, a case in which the state
chose n~t to perform its own LQ, testalld wherein the defense expert found an LQ. of6~, the prosecutor implied ill

63
 176) The legislature has created a statute that precisely mirrors a specific, scientific

diagnosis, alld the Louisiana Supreme Court has gone on to interpret that s.tatute as equivalent to

that diagnosis; the statute itseU: however, neglects to reference that diagnosis in any way

whatsoever. The jury, as it were, is not let in on the secret. As presently constructed, therefore,

the definition of mental retardation at La. C.Cr.I>. art. 905.5.1(H)(I) is "a vague propositional

l~lctor used in the se~ltencing decision" that "creates an unacceptable risk of randomness, the

mark of the arbitrary and capricious sentencing process. " Tuilaepa v. Cal{jhrnia, 512 U.S.

967, 975 (1994).

177) The problem can be cured by including a statement in the statute noting that the

deJinition is equivalent to the most recent clinical definitions of the APA and AAlDD.

178)Mr. Anderson must receive a new trial to allow the jury, with the benefit of a

stautue linked specilically to the clinical definitions put n)rward by the APA ancl the AAIDD, to

determine 'whether ,he is mentally retarded and therefore excluded 1'1'0111 receiving the death

penalty.

VII. Thc~tate's refusal to agree to a pre-trial hcaring,failure, to rebut the defense

expert's finding oJ mental retanlation, and unsuppoded and misleading arguments
to the jury during closing arguments ~lI'e indicative of (ll'osecutorialmisconduct that
prejudiced the dcfcnd~lIlt
,.'. ,
The State's Failure to Supply, or Even to Consider, a Case-Sped/ie Reason For
Reji,lsing To Agree to a Pre-ThaI Hearing Suggests the Presence (?f' an
I111pennissible Proseeutorial Motive.

179) As discussed at length above, the prosecutor in this case announced that the

closing that the definition was unfathomable and that I.Q. was irrelevant:

No matter what definition that any of these doctors brought to you in this courtroom, the definition
that governs exemption from capital punishment is very specific in Louisiana, and it says ... And
listen very carefully, and I asked you to listen very carefully, this doesn't say anything about an
IQscore. It has two solid part,s, and it's very plain that a person must be clearly mentally retarded
under this definition, or they are not exempt from capital punishment. And it says, "mental
retardation means a disability characterized by significant limitations in both intellectual
functioning" and the second part that's a requirement, it requires two, "adaptive behavior as
expressed in conceptual, social and practical adaptive skills. The onset must occur before the age
of 18 years." Noll', what does that mean? There is not anything about IQ.

",'tate v. Lee, 976 So. 2d 109 (La. 1/16/08); appellate record, p. 9377(emphasis added). The prosecutor then went on
to inform the jury that the unfathomable statutory definition had, in any event, nothing to do with the experts; it was
entirely the jury's call:

Letme tell you sOlpething, and don't make this mistake. 771e decision on mental retardation does
not belong to those doctors that took the stand It belong to yo II, and it's not their definition that's
important. It's Louisiana law, and Louisiana law provides a very strict definition that you have to
show beyond a preponderance of evidence before you can go out and murder somebody, before
you can rape and murder somebody, or bel()re you can rape and murder a lot of people and come
into this courlroon'l and try to get yourselfexempl from capital punishment bepause of mental
ret'ardation .. Look at his background. He functions. (-Ie gets commercial driver's license. lie has
cell phones. He has families. I-Ie has "vives. He functions in society.

State v. Lee, 976 So. 2d 109 (La. 1/16/08); appellate record, p. 9378 (emphasis added).

64
district attorney's office had a blanket policy against agreeing to pre~trial determinations of

mental retardation. At no point did thc state contcnd that Mr. Anderso.n's Atkins claim was

frivolous, or that he would be unable to make a substantial showing of mental retardation,

supported by pre-arrest evidence. Indeed, the strength of the evidence of Mr. Anderson's mental

retElrdatiol1 appears to have played no role in the state's conduct in this case, except perhaps to

scare thenl,off retaining their own experL The prosecution's refusal to consider Mr. Anderson's

cognitiveandadaptiv y impairments, even in the wake of Atkins, when deciding how to prosecute

the case in itself demonstrates a callous disregard for the right of a capital defendant to have a

fair determination of his intellectual capacity and to be spared the death penalty if he is mentally

retarded. Indeed, "[t.lbe only plausible account for avoiding a pretrial determination is the state's

desire to confront the decisionmaker with the 'cost' of exempting a defendant from the death

penalty in circumstances where they have already found his criminal behavior to warrant death."

Carol S. Steiker & Jordan M. Steiker, Atkins v. Virginia: Lessonsfi'olll Substance and Procedure

in the Constitutional Regulation (~lCajJital Punishment, 57 DePaul L. Rev. 721, 727 (2008).

180) The refusal to agree to a pre-:trial determination of mental retardation, even where

competent evidence strongly supported such a diagnosis, in the hopes that the jury would

"nullify" the United States Supreme Court's ban on the execution of mentally retarded

individuals constitutcs an abuse of the prosecutorial function. A prosecutor

is the represen'talive not of an ordinary party to a controversy, but of a sovereignty

whose obligaliop to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which is that guilt shall
not escape or inllocence suITer. He may prosecute with earnestness and vigor -
indeed, he should do so. But, while he may strike hard blows, he is not at liberty
to stri ke foul ones. It is as much his duty to re.fi'ain .Ii"0111 improper methOLlY
calculated toproduce a l+T(J11gfitl conviction as it is to use evelJllegitimate means
to bring about ajust one.

!Jerger v. United States, 295 U.S. 78, 88 (1935) (emphasis added). It nppearsfrom all the

circumstances of this case th~lt the Orleans Parish District AttorneY's Office has committed

misconduct by i-cfusing pre-trial hearings on mental retardation in the hopes of obtaining

wrongful death sentences.

/Uier Failihg to Rebut the De.fense E,'idence on Mental ](etardation, the

Prosecutor A/ode Statements About Mental Retardation in Closing Argument 1710t
Were Clinically Irrelevant, Served Only to Cm?filse the Jury, and Were Never
Posed to the Expert Witness.

181) At the penalty phase, the defense called Dr. Victoria Swanson as an expert

65
witness. Dr. Swanson presented extensive, credible testimony about Mr.Anderson's cognitive

and adaptive deficierlcies. She. ultimately concluded that "[u]nder

- every general diagnostic

criteria that [she is] aware of, and based on [her] professional opinion as a psychologist, as an

expert in Mental Retardation, and everything reviewed and every test" done, Mr. Anderson is in

hict mentally retardecL Testimony or Dr. Swanson, 1'r. 117.

182) The prosecution asked Dr. Swanson a total of nine questions on cross

examination, and offered no expert testimony in rebuttal. Dr. Swanson's testimony and her

strong and unequivocal conclusion that Nlr. Anderson was mentally retarded were left

unrebutted.

183) Instead of presenting expert testimony that supported the state's assertion that Mr.

Anderson is not retarded, or confronting Dr. Swanson with any alleged deficiencies in her

diagnosis, the state reserved the bulk of its case on mental retardation for' its closing statement.

At that time, the prosecutor 'made numerous conclusory and entirely unfounded statements about

the nature anddiagm)sis of mental retardation and the reasons why Mr. Anderson does not meet

that dellnition. These comments include the following:

"The ability Michael Anderson has to get people to do things he wants IS

evidence enough by itself that he is not retarded." Closing Argument Tr. 8..

"Michael Anderson can ride a bike. Michael Anderson can drive a car. Michael
Anderson can brush his teeth. He can put his clothes on for himself We know he
can use the telephone. And he can unload a 40-caliber block with sniper
precision." Closing Argument Tr. 9.

"I'm talking about a person, that the evidence shows you, had a girlfriend. Dated,
went to clubs, went to hotels. As Mr. Alford explained to you, as you've already
unanimously found and agreed, systematically executed a mass murder of live
teenagers by himself in a moving vehicle with one gun." Closing Argument Tr.
37.

"His lQ is not below 70. It's not 70. And a matter of fact, his street IQ is even
higher. His street IQ would indicate he's a genius." Closing Argument 1'r. 38-39.

"[I]fyou believe he's mentally retarded, he will have worked yOtl over, as well.
Michael Anderson is not retarded. Maybe a mass murderer, maybe a sociopath,
but he's not retarded. rIe is not. This man is not the type of person that the lmv
,;Vas designed to protect. He was the type of person that the law meant to be
executed. He is the type of person that is deserving of the death penalty." Closing
Argument 1'r. 39.

184) The state had no evidenliwy basis, and no basis in science or law, for claiming

that Mr. Anderson's alleged capacity to perform certain menial tasks such as brushing his teeth

and using the telephone precluded a finding of mental retardation. The prosecutor simply relied

on stereotypical information regarding what mentally retarded people' can and cannot do -

information with no basis in science. H.e did so notwithstanding the conclusions of scholars,

GG

. - /'.'7
psychologists, and judges that a diagno~is of mental retardation must be ba$ed upon the presence

qf adaptive weaknesses rather than the absence (?f strengths. For example, the AAIDD has

explained that

'Within an indiVidual, limitations ollen coexist with strengths.' This means that
people with [mental retardation] are complex human beings who likely have
certain- gills as well as limitations. Like all people, they ollen do some things
better than others. Individuals may have capabilities and strengths that are
independent of their [mental retardation] (e.g., strengths in social or physical
capabilities, smile adaptive skill areas, or one aspect of an adaptive skill in which
they.otherwise show an overall limitation.).

AAIDD,supraat 7; AAIDD, supra at 47 ("[I]n the process of cliagnosingID, significant

limitations in conceptual, social, or practical adaptive skills is not outweighed by the potential

strengths in some adaptive skills."). R.egarcling the behavior related to the'QITense and prior

offenses, it is also a weU-established premise of mental retardation assessment that maladaptive

behavior should playa minimal role in any assessment of adaptive behavio,r in that such

behavior, unlike the behavior addressed on standardized adaptive assessments, Jor instance, has

not been standardized or normecl. See also, e.g., Blume, et aI., C?lAtkins and 1I1el1, supra (finding

that it is the presence of weaknesses, not the absence of strengths, that is relevant l~)l- the

purposes of the determination of mental retardation); John l-l. Blume, Sheri Lynn Johnson, and

Christopher,Seeds, 1~11 El1lpiricalLook at Atkins v. Virginia, Cornell Law School R.esearch Paper

No. 09-021 (same).

185) The Oklahoma Court of Criminal Appeals has persuasively explained that to

prove mental retardation,

[a] defendant must show he has signi ficant limitations in adaptive functioning, but
is not required to show that mental retardation is the cause of his limitations in
these skill areas. In order to counter such a claim, the State must present evidence
negating those particular skill limitations. Unless a defendant's evidence of
particular limitations is specifically contradicted by evidence that he does not
l-iave those limitations, then the defendant's burden is met no mattei- what evidence
the State mightolTer that he has no deficits in other skill areas. In fact, the State
need not present any evidence that a capital defendant can function in areas other
than those in which a dellcit is claimed. In capital mental retardation proceedings,
the State's First response must always be to counter the evidence presented by the
defendant.

Lall/bert v. State, 2005 -OK CR 26, P6 (Okla. Crim. App. 2005). The court continued,

It is unclear how [evidence that the defendant could talk with police, relate events,
answer questions, and did not appear mentalIy retarded] of this reasoning applies
to the definition of mental retardation in capital cases. Every expert who testified
agreed that a mildly mentally retarded person can remember events and is capable
of carrying on conversations on specific topics. Experts also agreed that mentally
retardecl per'sons can allen drive, remember how to get places they have been
before, and commit crimes which cia not require abstract thinking. Experts and
laypeople testified that one can look at and converse with a person and 110t tell

67
the Atkins decision and the scientific nature of a diagnosis of mental retardation, the prosecutor

effectively encouraged the jury to nullify AIkins and to deprive the defendant of his constitutional

rights under the Eighth Amendment.

Alr. Al1dersonWas Prejuc/;ced by the Prosecul'orial klisconduct and by the

Pelially-Phase Determinationqj"Mel1tal Retardation.

·191) To make out a claim that the prosecutorial misconduct necessitates reversal, the

improper arguments or remarks made by the prosecutor must result in prejqdice. Uniled Slales 1'.

Mendoza, 522 ,F.3d 4g2, 491 (5th Cir. Tex. 200g) ("If [the remark] was [legally improper], we

turn to whether the remark 'prejudiced the defendant's substantive rights'" (quotation omitted).).

Here, that prejudice is clear. ' The state put on no rebuttal evidence to counter Dr. Swanson's

testimony. Instead, the state, relied solely on a bare-bones cross-examination and on

inl1ammatory and unsubstantiated closing argument to convince the jury that the aggravating

l~lctorS outweighed the clinical evidence of mental retardation. As the Fillh Circuit has

explained, "Depending on the ,weakness of the incriminating evidence, relatively mild but

erroneous comments can be reversible error, but a case containing overwhelming evidence of

guilt would be little alTected by much more egregious error in argument." United Slales v.

]v[eI1dozo, 522 F.3d 482, 494 (5th Cir. 2008). Objectively, the prosecution's case on mental

retai'datiori here was extremely weak. Under such circumstances, -the prejudice of the

prosecutor's improper comments is clear.

192) It is worth noting that the state's success in convincing the jury of its unsupported

arguments during the penalty ,phase also provides further evidence of the unconstitutional

unreliability of a peilalty phase determination of mental retardation. Given that jury

determinations of mental retai-datioil at the penally phase are inherently unreliable, see supra Part

I, there is a heightened risk that the prosecution will successfully persuade the jury if it employs

improper tactics. The prosecutor is also more likely to convince the jury of the veracity of

specious and unsupported m'gllments about the nature of mental retardation because jurors

themselves n'equently hold stere()types about the nature of mental retardation. According to a

study based on data collected by the Capital Jury Product, many jurors have misconceptions

about mellhll retardation, and a penalty-phase jury determination of mental retardation is bound

to bealJected by these stereotypes and misconceptions:

[P.leople ol1en hllsely believe that all persons with mental retardation "look
retarded," exhibit childlike behavior, and are easy to detect. Although some
persons with mental retardation fit this profile, most do not. ... Persons wilh mild

70

;-)
 mental retardation generally have specific areas of weakness and others of relative
strength.. " The generalpublic's limited exposure to and experience with mental
retardation often result in the formation of unfounded stereotypes and
misconceptions. When these misconceptions are brought into the jury box,
defendants with mental retardation stand to suiTer. If defendants present evidence
that is inconsistent withjurors' preconceived notions about mental retardation, the
evidence may be dismissed, ignored, or at least misunderstood.

Marla Sandys, Adam Trahan & Heather Pruss, Taking Account (?lthe "Diminished Capacities q[

the Retarded": Are Capital Jurors up to the Task?, 57 DePaul L. Rev. 679, 683-84 (2008)

{Iaotnotes on1iHed).

193) In this case, given the weakness of the state's case on mental retardation, there is

an exceptionally strong likelihood that the jury was misled by the state's improper and

unfounded argtunents' about mental retardation. This likelihood is further strengthened by the

inherent problems with leaving the decision on mental retardation to a jury at the penalty phase,

and by the stereotypes that many .i urors hold coming into the trial about mental retardation. Mr.

Anderson was prejudiced by the prosecutorial misconduct and has been deprived of a fair

determination 0 f mental retardation. A new trial on that issue is warranted.

VIII. Unde.- l{illg F.' AriZOlla, the state was requin~d to prove the absence of mental
rctanlatioll beyond a reasonable doubt

194) Atkins categorically prohibits the execution of a defendant who is mentally

retarded .. The absence of mental retardation, therell.)l'e, increases the maximum penalty of first

degree murder from life in prison without parole to death. Pursuant to Ring v. Arizona,

[u]nder the Due Process Clause of the [Fourteenth] Amendment .and the notice
and j my trial guarantees of the Sixth Amendment, any fact (other than prior
conviction) that increases the maximum penalty for a crime must be charged in an
indictment, submitted to a jury, and proven beyond a reasonable doubt.

536 U.S. 584, 601 (2002) (quoting Jones v. United States, 526 U.S. 227, 243 n.6 (1999))

(emphasis aclded) (holding that aggravating factors necessary lar the imposition of the death

penalty must be Laund by a jury); see also Apprcmdi v. New Jersey, 530 U.S. 466 (2000). Once

the defendant has made some showing of mental retardation, the burden of proving the absence

of mental retardation must shi n to the state, as it is a fact that increases the maximum available
penalty lor first degree murder to death.

195) Louisiana law, however, requires that "[a]ny defr:mdont in a capital case making a

claim of mental retardation shall prove the allegation by a preponderance (?lthe evidence." La.

C.Cr.P. Art 905.5.1 (C)(l) (emphasis added). The jury in this case was instructed that

the defendant mllst establish that it is more probable than not that he !>:vas] [is]
mentally retarded. If you unanimously find by a preponderance of the evidence
that the defendant has proven he is mentally retarded, you should return a life
71

,,
 sentence.

Both the statute and the instruction clearly violate Ring in placing the burden of proof on

the defendant. Because Mr. Anderson undeniably presented a colorable claim that he suffers

from mental retardation, the Sixth Amendment right to trial by jury and Fourteenth Amendment

right to due process require the state to prove beyond a reasonable doubt that he is not mentally

retarded.

IX. An injustice ,vas donc to the defendant when the state were allowed to present
inadmissible and unduly pre.iudicialmaterial in the gnilt phase

Allegations regarding the shooting ofRaymond Cobbins, the alleged hit on TO!7'ie
IVillial71sand the taped call involving Corrie Oliver 1vere imj)roperly admitted in
the case

196) During the course of the guilt phase of the trial, the trial court made a series of

erroneous rul ings, allowing the state to present to the jury evidence of: the shooting of H,aymond

Cobbins; an alleged hit taken out on Ton'ie Williams; and, a recorded call involving Corrie

Oliver.

197) None of the admitted evidence met the requirements for admission of La. C. E.

art. 404, nor was it relevant to the offense charged as required by art. 401 and in each case the

probative value of the evidence was substantially outweighed by the danger of unfair prejudice,

confusion of the issues and misleading the jury as described in art. 403. 'rhe trial court's rulings

that the defense opened the door were both erroneous and punitive.

The trial court's rulings admitting this evidence show prejudicial error and the
ends ofjustice 11'Olild be served by the granting (?la nelV tdal

198) The course of the trial, the reliance by the state on this inadmissible evidence and

the shift in the balance of the trial from the charged offense to uncharged conduct demonstrate

the prejudice in these errors. La. C. Cr. P. art. 85 I(2).

199) Particularlygive~l the heightened standard of reliability in fact-finding in death

cases, the ends of justice would be served by granting Mr. Anderson a new trial in which the

state is required to prove any other crimes alleged by sufficient, competent and admissible

testimony that does not violate Mr. Anderson's Conliontation rights. La. C. Cr. P. 851(5).

X. An injustice was done to the defendant wlwn the state were allowed to present
inadmissible evidence of other crimes and had acts in the penalty phase

The state lHES improperly permitted to use hearsay evidence that/cliled to meet the
Jackson standard.f()r reliability to present evidence (?I' uncharged acts against the
de.fendant in prjiwlty phase und was permitted to introduce el'id~nce (~l charges
ond conditct above 'and beyond the (dfense to l1'hichMr. AndersoE? pled guilty

2(0) The state relied heavily in penalty rJhase on the alleged aggravated assault with a

72
l1rearm that res.ulted in a plea tol~lon in possession and on the alleged arm~d robbery and related

conspirac,y to murder.

201) As to the aggravated assault/felon in possession, the detective was impermissibly

allowed to present a hearsay account of the allegations regarding the shooting and impermissibly

permitted to testify as to the original charges and the charged conduct above and beyond the

offense to which Mr. Anderson ultimately pled guilty. S'tate v. Jackson, 608 So. 2d 949, 954 (La.

1992); State v. Langley, 94-0999 (La. 4/21/94), 639 So. 2d211, 212; State v. Mannhlg, 03-1982

(La. 10119/04); 885 So'. 2d 1044, 1092-109. The rules of evidence apply at penalty phase, the

identifyillgvictim/witness did not testify and no exception to the hear~ay rule applied in this

case. The references to conduct that formed part of the allegations to which Mr. Anderson did

not plead guilty .as well as the facts of those charges were inadmissible. Prejudicial error is

shown in the admission ofthe evidence, the state's reliance upon it and the verdict of death. La.

C. Cr. P. art. 851(2).

202) As to the armed robbery and conspiracy to murder, in violation of the defendant's

constitutional rights to Confrontation and to Due Process, the state were permitted to .admit

hearsay testimony to attempt to establish the commission of the offences by Mr. Anderson.

Neither the circumstances established by the state, nor the evidence admitted satisfied the

relevant hearsay exceptions (statement of identi fication, statement of co-conspirator, dying

declaration, forfeiture by wrongdoing etc.). Further, the reliance upon a hearsay exception

(forfeiture by wrongdoing) introduced into law after the commencement of trial in this case is

unconstitutional as violation ofthe Due Process clauses of the state and federal constitutions and

as an expostfacto violation. Finally, whatever the accuracy of any ruling under the provisions

of the Louisiana Code of Evidence, the Confrontation Clause was violated when the state was

allowed to present hearsay evidence in this death case, denying Mr. Anderson the opportunity to

confront the witnesses against him.

The state was permitted over objection to present in closing argument the
inadmissible contents (~la briefp,\)!(.:hiafric assessll1enffi'om when Mr. Anderson
was sixteen that lFC7S qfTered pwely./iJr itsprejudicial efFect

203) In closing argument in the penalty phase the state read out an excerpt from a one

page psychiatric report prepared in LTI that served as a vehicle to present to the jury an account

ofMr. Anderson admitting to other crimes, a lack of remorse te)t· his criminality and a general

criminal propensity. The contents of the report were not admissible for the truth of their contents

73

'I
but this is exactly how the state used them in closing argument. The report had only been

admitted into the record as a part of an in globo exhibit containing the records reviewed by Dr.

Swanson and upon the specific of(~ring by the state that they did not seek to publish the contents

orthe exhibit to the jury.

204) The doctor who authored the report was not called as a ·witness. The use of the

contents of the report to prove the truth of the matters asserted clearly violated the hearsay

prohibitions in the Code of Evidcnce and Mr. Anderson's constitutional right to confront

witnesses. The passage was devastating for Mr. Anderson's case as it representcd an

unconfronted but damning account of IVlr. Anderson's admissions of misconduct, violent

propensities and remorseless attitude and was presented to the jury at the very end of the case

without any opportunity for the defense to rebut the opinions except to note that the doctor \vas

not called.

205) Prejudicial error is shown in the court's rejection of the defense objection and the

ends of justice would be served by granting a new trial and allowing the questions of i~lct raised

by the report to be properly ventilated. La. C. Cr. P. art. 85192) & (5).

The trial court's rulings admitting this evidence show prejudicial error and the
ends o/justice would be.s·erved by the granting (~la new trial

206) It was error to admit the other crimes and bad acts evidence otTered by the state in

penalty phase and the heavy reliance by the state on that evidence demonstrates the irremecliable

prejudice suffered by IVlr. Anderson. La. C.Cr, p,. art. 851 (2).

207) Particularly given the heightened standard of reliability in fact-finding in death

cases, the ends of justice would be served by granting Mr. Anderson a new trial in which the

state is' required to prove any other crimes alleged by sutTicient, competent and admissible

testimony that does not violate Mr. Anderson's Confrontation rights. La. C. Cr. P. art. 851 (5).

Xl. An injustice ,~'as done t"o the defendant whcn the state uscd its pel"emptory challenges
to strike junH-s on the basis of race, gender, age and religion, and thc court accepted
prctcxtual reasons fOl~ the stdkes based on age and religion

20S)' The process of selecting a capital jury in Orleans Parish is at the outset all

exercise in exclusion. As the recent trial in S'tate v. Wells demonstrated, the majority ofjurors in

the Parish do not favor the death penalty.. Indeed, court filings in /Yells establish that 45% of

other\vise' qlmlifiecl and available jurors were struck for cause because they would not impose a

death penalty. A further number opposed the death penalty but were qualified on the basis that

they would nevertheless agree to follow the law. As the record has not yet been prepared in the

74

j-i
 preseqt casc, the exact percentage of jurors struck for cause through the death qualification

process is not available but the figllre from l}le ll s illustrates the point. .Layered on top of the

exclusion created bydeatll qualification is the use of state peremptory challenges.

209) The death verdict in this case was the first in Orleans in a dozen years and in over

300 capitaL indictments. While it was a case that involved the death offivevictims, numerous ot'·

the previous three hundred indictments involved multiple victims, including double, triple and

quadruple homicides. One thing that does single out this trial and sentence, however, is the

racially disproportionate make up 0 f the jury and 0 f the state' speremptory strikes.

210) During jury selection the defense objected to the state's use of peremptory

challenges and the trial cour~ found a prima .lclcie case of racial discrimination. The state

proffered reasons for its strikes that were, ill the defense submission, plainly pretextual and in

many cases applied equally to white jurors who were not struck. 44

21.1) The trial court denied the Balson challenge on the basis that the jurors were not

denied an opportunity to serve because of race reasons alone. The trial court did not and could

not find that race.was not a substantial or operating cause for thejurors being struck. Indeed,just

·as in the Harris case, the prosecutor here included race as one of his articulated reasons for

striking ajuror (juror Weaver). Cr. 5'lole v. Harris, 2001-0408 (La. 06/21/02); 820 So. 2d 471,

474 (Batson challenge upheld and conviction reversed where prosecutor's reason included, "I-Ie's

a single black male on the panel with no children").

212) The trial court failed to apply the correct constitutional standard in assessing the

Bolson claim, applyilig the standard identified in the Code, requiring that an impugned

peremptory chalLenge shall have been based "solely" on race. La. C. Cr. P. art. 795(C). This

standard is far too narrow and fails to comport with the federal constitutional standard, which

prohibits peremptory challenges that are motivated in substantial part by discriminatory intent.

S'nyder v. Louisiana, 552 U.S. 472, 485 (2008). Prejudicial error is shown in the trial court's

ruling both 9n the merits and in the application of the wrong standard. Applying the correct

standard, there is no doubt that the state's challenges were motivated, at least in' substantial part,

by discriminatory interit and the ends of justice require a new trial. La. C. Cr. P. art. 851(2) &

. (5) ..

213) It is the primary submission of the defense that the state exercised its strikes based

As the record has not been lodged itis not possible to provide a full comparative juror analysis but trial counsel
,II
identified atthe time that numerous non-struck jurors shared characteristics the state described.

75
 on race but in the alternative, if the pretextual reasons of the state are accepted, those reasons

themselves betray strikes based upon impermissible grounds of gender, age and religion. In

articulating its "race neutral" reasons the state, on at least three occasions, listed the gender of the

juror in its explanation of the basis for the strike (see, for example, jurors Weaver, Smith and

Ryan).

214), furthermore, in violation of the Sixth and Fourteenth Amendments and in

violation of La. Const. art. 1, § 12 the state struck jurors based on age, in particular, as part of an

articulated strategy tO l exclude anyone in their mid-twenties or younger (see, for example, jurors

Weaver, Smith, Banks, Smith, Ryan). 'fhe state cannot discriminate on the basis of age or

choose to exercise its peremptory strikes based upon entrenched stereotypes about the fitness for

jury service of perSOIlS bf a particular age group.

215) Finally, in violation of the First, Sixth and Fourteenth Amendments and in

violation of La. Const. art. 1, § 8 & 12 the state struck juror Ryan based on religion. In a proffer

dripping with religious bigotry, the prosecutor articulated the principle basis of the strike as

being Ms. Ryan's religious beliefs. While misstating the tenets of. Ms. Ryan's faith, the

prosecutoi' also belittleCl her sincere beliefs - beliefs no more risible from a scientific standpoint

than those of most Christians. It is not sufficient response to an accusation that a peremptory

strike has been leveled on the basis of race for a prosecutor to explain that he is not

discriminating on the basis of race but instead on the basis of religion. Religious freedom is

guaranteed in this country and this state and discrimination based on religion is prohibited by the

state and federal constitutions.

216) Prej udicial error is shoyvn in the erroneous rulings of the trial court and given the

discrimination involved in the jury selection and the unrepresentative character of the jury the

ends ofjustice 'would be served bya new trial. La. C. Cr. P. art. 851(2) & (5).

XII. An injustice was done to the defendant when unlawful 'witness intimidation
prevented the jm-y from hea.-ing from eyewitness Con-ie Oliver that Mr-. Anderson
was not the shootel-

217) During the course of the investigation, the fBI interviewed' Corrie Oliver, an

eyewitness to the shooting who both confirmed that Mr. McMillan was present ancl confirmed

that ~lr. Anderson was not the perpetrator.

218) At the time of trial, laboring under fear of being killed if he testified, Mr. Oliver

refused to cooperate with the defense and his evidence became unavailable. At the time of trial,

76
 45
Telly llanktoll was locked up in the Orleans Parish Prison Complex, as was Mr. Oliver.

SLlbsequent to trial, Mr. Oliver has been placed in the vv'ork. release program and has seen Mr.

Anderson sentenced to die for a crime he knows that Mr. Anderson did not commit. Mr. Oliver

has signedast~ltement for the defense team confirming the previous in (or11lation provided to the

FBI and also stating unequivocally that Torrie Williams was not present at the time of the

shooting.

219) As a result, new and material evidence not previously available to the defense has

now become available that shows that Mr. Anderson was not the perpetrator, corroborates the

exculpatory account ofMr. McMillan and debunks the state's claim that Ton'ie Williams was an

eyewitness. Mr. Oliver will testify that he was present, saw the shooting, that the perpetrator \vas

not Michael Anderson and that the perpetrator was alight skinned black male. He will also

testily that Torrie Will iams was not present at the time of the shooting.

220) Given the new and material evidence now available to the defense and having

particular regard to the capital nature of the charge, the ends of justice would be served by the

grant of a new trial at which a jury can hear from Mr. Oliver. A new trial should be granted

pursuant to La. C. Cr. P. art. 851(3) & (5).

XIII. An iIijustice ,,;as dmle to the defendant when he was cOllvicted ,of a cdmc that TiClly
lIailktoll has subscqucntly confessed to committing

Subseyuent to trial, the defi:mse has obtained a statementfi'oll1 Steven Givens that
Tell)! J-1ankton cOl'?lessed to the kUling fiJl' which Jdichael Anderson has been
convicted

221) Following the verdict in this case, the defense has obtained a statement from a

Steven Givens to the effect that Telly 11ankton admitted that Michael Anderson was not

responsible lor the killings and that it was his (Telly 11ankton's) work. This is new and material

evidence that if introduced at trial would likely have changed the verdict at guilt or penalty

phase. La. C. Cr. P. art. 851(3). Given the heightened standard of fact finding expected in

capital cases, given the ample corroboration in the record lor the allegation that Telly Hankton

committed the crime and given the fundamentally important nature of the new evidence, the ends

ofjustice would be served by the granting ofa ne\v trial. La. C. Cr. P. art. 851(5). It should also

45 1narguing to the trial court that the cases against Mr. Anderson for armed robbery and conspiracy to commit
murder 'were still likely to be prosecuted, the state in this case specifically articulated that witnesses may come
forward once threatening individuals died or were incarcerated. That is precisely what has occurred here. The
derense investIgation has been hampered by the terror produced by the mere mention of the name Telly Ilankton.
Repe8teclly, witnesses have explained tl18t while they know Michael Anderson is not guilty and that Mr. Bankton is
the iJeivetrator, they are uinvilling to risk their lives or those of their families by speaking out unless they feel that
Mr. Hankton cannol gel allhem.

77
 be noted that numerous of the Crimestopper's tips disclosed for the first time at trial implicated

Telly 1-1ankton, that in recent court documents he has provided an address 0 f 1920 Josephine

Street and that he is rumored to be associated wi th the victim ofthe May 1, 2006 attack that was

said by Police Chief Warrell Riley to have provoked the attack on the victims in this case.

XIV. An in.justice was done to the defendant 'whcn the statc sU(l(l."esscd evidence regarding
the snitch, Robcrt ,John, allowcd his falsc tcstimony to rcmain uncorrectcd and 'when
ncwly availablc cvidcncc would Iikcly rcsult in a diffe."cnt vcrdict

171e state" had an obligation to disclose ./clvorable iJ?!ormation, in particular any

agreement actualvr tacit and any expectation on the part (~lthe witness

222) The state had an obligation to disclose any inducements that had been made to

witnesses, including if the possibility of a reward had been held out whether by way of an actual

agreement or promise or by a tacit understanding. Us. v. Bagley 473 U.S. 667, 683 (1985);

Giglio, 405 U.S. at 154-55.

223) When a prosecutor fails to disclose the circumstances of the witness's decision to

testify, the ethical breach is all the more egregious where there is an "apparent effort [on the part]

of the prosecution to conceal the true nature of the dealings with its key witness ... " United

S'tates v. Butler, 567 F.2d 885, 888 (9 1h Cir. 1978). The courts "will not tolerate prosecutorial

participation in technically correct, yet seriollsly misleading, testimony which serves to conceal

the existence of a deal with material witnesses." Blankenship v. Estelle, 545 F.2d 510, 513 (5 1h

Cir. 1977). Where a witness likely expected a deal, but the prosecution declined to put it in

writing and disclose to the jury exactly what it was, such actions by the prosecutor

only increased the sigl1ificance, for the purpose of assessing his credibility, of his
expectation of J~lVorable treatment. Since a tentative promise of lenience could be
interpreted by the witness as being contingent on his testimony, there would be an even
greater incentive for him to 'make his testimony pleasing to the prosecutor.'

Portelfield v. State, 472 So.2d 882,884 (FI. DCA 1, 1985); accord Campbell v. Reed, 594 F.2d
lh
4, 8 (4 Cir. 1979); United States v. Bynum, 567 [2d 1167, 1169 (1 51 Cir. 1978); United States ex

reI. Washington v. Vincent, 525F.2d 262, 265 (2d cil'. 1976); "Marrow v. State, 483 So.2d 17, 19-

20 (Fi. DCA 2, 1985).

224) The state made no disclosure of any agreement, promise, inducement,

understanding or deal in respect of Robert .Iohn or any ofthe other snitchwitnesses. 46

AIr. John lied to the jury about his motivation for snitching on Mr. Anderson und
the state allmved his./cTlse testimony to go uncorrected

,16The defense intends to call allofthe three snitches ancl Don Hancock from the Sheriffs Office to prove the
allegations in this and the IDlIowing claims.

78
 225) At trial" Robert John testified that the letter he wrote to the District Attorney was a

letter of soul searching and coming clean with himself and other crimes people committed.

Further, that he received no help from the DA's office and that by writing the letter he ,vas not

seeking any help.

226) In truth, as the defense has learned from taped telephone conversations in the jail

recently obtained by the defense, Mr. John was a professional snitch who was actively working

with the authorities to secure his early release in circumstances where he h1ced a possible life

sentence and wrote the letter out of desperation to obtain favorable treatment and release from

the authorities.

227) On April 21,2007, Robert John began a long endeavor to snitch on accomplices

in federal court in order to receive leniency. He told his mother, "I got offered my fieedom if r

help vvith police ... to get the people off the street...some of the people I know." He told his

mother that stale policeancl federal marshals had specifically told him he could help himself and

get out ofhi~ '~mess.'; He explained, "I'm going to be on a task force, undercover to help them."

On April 26, 2007, he called his' mother again to claim that he was trying to inform on someone

else.

228) Robert John's conversations between this time and the time thal he wrote to the

District Attorney's otlice reveal that he was obsessed with attempting to get leniency by being an

inlormant.

229) Over the course of these months, Robert John's situation in jail became

increasingly desperate and tortuous. In May, 2007, he was moved to the tenth Hoor of HOD

when he tried to commit suicide aner being raped. From the tenth Hoar, he continued his efforts

to become an intormant. He spoke to the police in early May f<.w about eight hours providing

them with additional information, and on June 18,2007, Mr. John's mother told him that she had

been in touch with the DA about whether or not he still wanted to "help out."

230) Shortly before H..obert John wrote to the District Attorney claiming that Michael

Anderson confessed to 'him, his situation suddenly became much worse. On June 25,2007, a bill

of information was filed against him with more serious charges than he thought he was facing.

The authori ties were telli ng him that they could not work to reel uce his sentence unless he could

get released on bond so that he could act as an informant on the street. In the h1ce of this

seemingly hopeless situation, he expressed to his mother a willingness to inform on "whoever"

79
in order to get out of jail: lneed to get out of here .. .1 don't want to .spend the rest of my life in

state prison. I'm not going to make it...1 don't care, I'll give up Lisa, and whoever, I'll help the

DA or do whatever I !lave to do." llecontinued: "1 need to do something to help mysel1~ or I'm

looking at prison for the rest ofnW liCe and I'm never coming home again."

231) On July 10, -2007, six days be fore he wrote to the District Attorney about IVlichael

Anderson, Robert John had a plan. lie called his mother, begging her to bond him out so that he

could wear a wire, be an informant, and avoid a lile sentence. "The only way 1 can save myself

from getting a life prison, Ma, now is to bond out, he [secret service agent] says." Robert John

was indisputably.driven by his attempts to get leniency. He explained to his mother, "[W:Jhen

you help prosecute other people, what 1 told them 1 would help them do, when 1 do that, that's

when I get areductioo and forgiveness, I could get immunity from the government, but 1 have to

cooperate, and I can.'t cooperate." He cannot cooperate, as was explained to him in his July 7

meeting with the secret service, because he must first be released.

232) Robert-John's mother refused to bond him out; in no small part because he was

the reasQn she did not have enough money to do so.

233) R.obertJohn, who·had been so desperate to snitch in order to avoid a life sentence,

who was being tortut'ed and raped in prison, who had become suicidal because of his plight and

whose hopes were ciTlshed by his mother's refusal to help, turned his attention to the most

famous murder defendant in the city. He said to his mother on July 21, 2007, "I'm trying to do

everything I can to get some .help to do something about my situation my legal situation." He

then mentions that he saw the news segment about the District Attorney's olTice releasing

Michael Anderson: '·'Now that they're picking the charges back up on him, I 'vvrote a letter to

Eddie Jordan anel am going to mail it outon Monday."

. 234} There is no doubt from the taped calls that contrary to his testimony at trial,

Robert John's express intent is to receive leniency in exchange lor his inlormation and

assistance. Indeed, it is clear that Robert John was a professional informant whose credibility

would need to be assessed with the greatest care. Because these aspects of Mr. John's history

were suppressed, the state was able to rely upon Mr. .Iohn's testimony in closing as a basis Jar

convicting Mr. Anderson. I-l<\d the jury known the truth about Mr. John's status and his

1110tivatiOl1'<lt the time that he committed himself to snitching on Michael Anderson, it is likely

that the verdict as to either guilt or penalty phase would have been dilTerel1t.

80
 235) The failure of the state to provide information about RoberUolm's expectation of

leniency is a violation of Brady, the f~lilure to correct his testimony is a violation of Napue and

Giglio. La. C. Cr. P. art. 851(4} The newly discovered taped conversations - unavailable to the

defense in the middle of a capital trial when the state provided the witness's information for the

first time and refused to provide details such as c\cIte of birth to the defense- could not have been

obtained with reasonable diligence. 47 La C. Cr. P. art. 851(3).

236) Robert John was presented to the jury as a man with only the most selIless

motives 1'01: speaking. out against Michael Anderson. The truth· is that he spoke out against

Michael Anderson at a time when he was absolutely desperate and singularly motivated by a

desire to receive faVOl'able treatment from the state. Even ifMr. Anderson were not entitled to a

new trial as a matlero( strict legal right, the ends of justice would be served by the grant of a

newtrial. La. C.Cr. P. art. 851(5}.

Mr. Ander,),ol1 has still not been provided with evidence to lvhich it is entitled
under EratO} and Giglio and so brings such allegations as he is able to at this
stage and seeks additional discovely andfilrther time to develop his claims

237} The defense has still not been provided by the state with any information

disclosing any hope, expectation or agreement, actual or tacit. Nor has the state disclosed any

information regarding :favorable treatment of Mr. John in the state or federal system for his

willingness to assist the authorities ...

238) The defense is continuing its investigations and seeking additional discovery from

the state in this regard. Furthermore, a detailed review of the taped calls provided in response to

defense subpoenas is' not yet complete and may disclose additional evidence. However,

consistent with the Code, Mr. Anderson is presenting such of this claim as he is able at this time

and requesting additional time, compulsory process and a fult evidentiary hearing to determine

the relevant facts and circumstances.

239) Even in the absence of additional proof: the circumstances give rise to an

ovenvhelming inference of a hope or expectation and that the expectation was iltlfillecl. Mr.

John was actively looking to assist the authorities to avoid a possible life sentence, he did avoid

that life sentence and \-vas sentenced to only 28 111onths, fiJrther, he was able to return to court

and have a large quantity of property returned to him despite the nature of his charges and the

circumstances of the seizures. Numerous courts have held that evidence giving rise to an

47 Indeed, it wasn't until November 25;2009 that the fourth Circuit ruled that the telephone calls ofOPP inmates
had no privacy protectioll and the DA's office took the positionlhal the defense could subpoena them at will. S'/ate
v. Wells, 2009-K-1602 (La. App. 4 Cir. I [/25/09).

81
 inference ora deal is su11icient to trigger relief. Keating v. Miss'Ollri, 643 F.2d 1315, 1318 (8th

Cir. 1981) (finding support for evidence of an undisclosed agreement [rom circumstances, but

denying Giglio claim because nondisclosure was not material in context .01' government's entire

prool); Ouimette v. Moran, 942 F.2d 1, 6-7 (lst Cir. 1991)(concessions granted to witness after

his testimony easily permit a reasonable inference that an undisclosed deal was made with the

witness); United States v. Smith, 480 F.2d 664, 667 (5th Cir. 1973) (inferring in partCrom fact

that probationary' sentence was recommended for accomplice aiter testimony that a deal was

made with prosecutOl'). See also Commo!1wealth v. DeCicco, 744 N.E.2d 95, 100 (Mass. App.

Ct. 20(1) (Brown, .T., dissenting) (emphasis added) (disagreeing with maj ority's conclusion that

Giglio error·was not material in context of other proof and finding that the ultimate disposition of

the witness' case provided a suffi<;ient bnsis to infer the secret existence of at least a tacit plea

arrangemen t).

xv. An injusticc was donc to the defendant whcn thc statc supprcsscd cvidcncc l'cganling
thc snitch, Jonathon })ad{cr, allowcd his falsc t,estimony to l'cmain uncolTccted and
when newly ava'ilahle evidencc would likely result in a differcnt verdict

240) At trial, the state presented the testimony of Johnny Parker, a federal inmnte

serving 22 Y2 years tor rQbbing a bank. With several years len to go on his sentence, Mr. Parker

emphatically denied at trial that he was motivated by any prospect oflenie.ncy. He told the jury,

':It's not about 111Y time, it's about my conscience." Mr.Parker explicitly agreed with the

prosecutor's suggestion that he is "not receiving anything." Mr. Parker also told the.i ury that he

had five years left on his sentence.

241) Federal court records reveal that in January, 2003, following the exhaustion of his

nppeals, Johnny Parkel"s Motion to Vacate, Set Aside, or Correct Sentence was denied without

prejudice.
. From . the date of that ruling on January 30, 2003, to the time that he testified against

tv!r. Anderson, there was no actioq in federal court on his case whatsoever.

242) Just two months aHer Mr. Anderson's conviction and recommended death

sentence, and six and a half years after the last action on his case, Mr. Parker was back in federal

court, this time on a motion filed by the government and sealed 011 November 2, 2009. A

response was ordered, and the matter is now bdore Judge Thomas D. Schroeder in North

Carolina.

243) ltcertainly appears that the government has sought a sentence reduction pursuant

to Rule 35, however, the record is unattainable as it has been placed under seal.

82
 244) If eitherthe state or federal government has acted on behalf of lVlr. Parker and is

or was assisting in the reduction of his sentence, that information· must be disclosed to the

defense. (supra). Further, the existence of an understanding, express or tacit, may be inferred

from the timi.ng and circumstances ofthe disposition ofthe witness' case. (supra).

245) Mr. Anderson therefore requests that the District Attorney disclose any

information, .even i(unrecorded and unwritten, regarding communications with a court, an

Assistant United States: Attorney, or defense counsel for Mr. Parker, about the possibility of

obtaining any benefits as a result of his testimony against Michael Anderson. Mr. Anderson also

specifically requests any letters written by any member of the District Attorney's office on Mr.

Parker's behaU: and any appearances made in court on his behalf Finally, Mr. Anderson

requests that a copy of any motions filed by the federal government relating to Mr. Parker's

testimony against Michael Anderson, specifically the motion filed by the United States on

November 2,2009.

246) Because this information is not as yet available to the defense, lVlr. Anderson

requests that any such materials disclosed be incorporated as part of this Motion for New Trial,

as a supplement to it Ol':be reJlected in a subsequently filed motion fornewtrial.

XVI, An injustice was done to the defendant when the state suppressed evidcnce regarding
the· snitch, H..onnie IYlol'gaJI, allowed his false testimony to remain ullcolTected and
when newly available evidence would likely resu~t in a diffcI'ent verdict

Ronnie A10rganlied on the lvifness stand about his motivations, his expectations,
his commzmications with the state and his role as a pro.!essional iT?!ormant, the
Orleans DisHict Attorney's C?llice knew it and failed to correct the false
. testilJ1(;ny. The DAs also feriled to disclose evidence (~l a pre-existing agreement
with .Mr. A10rgan and (?t' an actual or tacit understanding reached with Afr.
Morgan about his testimony

247) Ronnie Morgan testified at trial to conversations he alleged occurred between he

and Michael Anderson at the House of Detention. The state elicited evidence from Mr. Morgan

and argued in closing that there was no agreement or understanding reached, that he had only

requested that he move closer to his family and that he had no expectation of j-eceiving even that

reward.

248) In truth however, as Mr. Morgan proves h.'om his own mouth in countless tape

recorded phone calls thilt he is a professional informant. Mr. Morgan has been involvecl in

providing assistance to the authorities in innumerable cases and his activities have extended to

working with a recording device in the jail to try to catch at least one target on tape. Indeed, Mr.

Ivlorghn has a longstanding and close relationship with both the Orleans Parish District

83
Attorney's Office and AUSA Landrieu in Jim Letten's office. The truth is that Mr.Morgan

spent much of 2007 in feverisll.contact (directly or through his mother) with AUSA Landrieu

and staff of the District Attorney's office. lIe directly assisted the Orleans District Attorney's

01Tice in a number of cases but in 2007 was frantic that he had not yet received a sentence

reduction. AUSA Landrieu explained that the hold up in granting him any benefit was the need

to obtain a letter from the Orleans Parish District Attorney's Office. Subsequently, Mr. Morgan

became frantic about the need for the Orleans Parish District Attorney's 01lice to recommend a

speci ficperioLi 0 f time to be reduced from his sentence and was hoping to have that assistance

result in his immediate release.

249) Revealed by the phone calls but undisclosed by the state is the fact that at the time

that Mr. Morgan alleges that he had the conversations withMr. Anderspn and communicated

with the state about them, he wa,s desperately currying favor with the Orlef1l1s District Attorney's

OJlice and acting in the clear expectation of and with the clear intent to receive a benefit for his

assistance. 48

250) Also undisclosed by the Orleans Parish District Attorney's Office was Mr.

Morgan's promise to that oJ1ice that if called to testify in a case he was assisting in, he would

never admit to, having any expectation or agreement for favorable treatment. He also

acknowledged that the District Attorney's Ollice sought to be deliberately vague about future

benefits in order Lo avoid Mr. Morgan being impeached. Mr. Morgan had the following

conversation describing his interactions with staff of the Orleans District Attorney's Office:

,IZonnie Morgan:

The way he [Orleans ADA] was talking it really convinced me, you
kllow. They helve to be careful about what they say, so that people won't
try to discredit me or whatever. And I told him, "Man, I don't care what
them people ask me, I don't care if you told me I was going home, I'm i10t
going to tell those people you said you were going to letme go home for
testifying, you InlOW." ,
,
Other person:

That's right. You've got that much sense to not jeopardize things.

251) Also undisclosed by the state was the benefit Mr. Morgan received in December

2007 for his co-operation with the state - a twelve month reduction in sentence.

252) Also undisclosed by the state was the fact thatMr. Morgan and the Orleans

DisU-ict Attorney's Office entered into a specific agreement in 2003 by which the Orleans

The state represented at trial that its first contact with Mr. Morgan ,vas on Iy in the days before he testi [jed, rather
·18
than acknowledging a rich andintil1l~te relationship with Mr. Morgan.

84
District Attorney's Office speciJicalIy intended to reward Ml'. Morgan in the event that he

provided favorable testimony in other criminal cases. Ml'. Morgan, who was serving federal time

and about to plead to state time, entered into an explicit deal with the Orleans Parish District

Attorney's 0 nice for a reduct.ion 0 f his state sentence to the same extent and in the same terms

of any future reduction he received as to his federal sentence. In short, at the time of Mr.

Anderson's trial, the Orleans DA's Office bad an ongoing deal with Mr. Morgan to allow his

state sentence to be reducedcolllmensurate with any reduction in his federal sentence on account

of any assistance he might provide. This deal vvas not disclosed to the defense prior to or during

triaL The state has stilI not disclosed this deal to the defense. Defense counsel only became

aware of the existence of this deal on Friday, February 51h , 201 () and is continuing to investigate

the matter and will seek further discovery and the assistance of compulsolW process.

253) Barely a month aller Ml'. Morgan testified in Mr. Anderson's trial his federal

sentence was reduced by four years and two months on account of his assistance to authorities.

'rhe inference of an expectation or agreement is inescapabale.

254)· Furthermore, the trial prosecutors in Ml'. Anderson's trial have subsequently

attended state court on behalf of Ml'.Morgan several times since October, actively advocating for

his state sentence to be reduced to match the reduction in his federal sentence. These

appearances have been characterized by a very friendly and convivial relationship between the

prosecutors and Mr. Morgan to match their advocacy on his behalf Despite the active

involvement of ADAsAlford and Andrieu in attempting to reduce Ml'. Morgan's sentence in

state court, the Orleans District Attorney's Office has attempted to disguise their involvement by

having ADA Scott's name placed on the recently filed pleadings.

.. 255) 'fhe ta~ied calIs of Mr.Morgan have also disclosed new and previously

unavailable evidence that his testimony regarding his conversations with Ml'. Anderson is false.

Instead of the detailed·discussions described in his testimony, the taped calls reveal that all Ml'.

Morgan had to go on was overhearing someone bragging about the kilIing of the five boys on

Josephine., Further, ]\Ih'. Morgan's efforts to play dumb about the operation and scope of Rule 35

reductions and the possible benefit from his assistance are belied by his detailed and extensive

conversations about these matters on tape.

256) The failure of the.slate to provide inConnationabout RonnieMorgan's expectation

of leniency, is a violation of Brady, the hlilure to correct his testimony in this egarcl and in respect

85
of his other hllse representations is a violation of Napue and Giglio. La. C. Cr. P. art. 851(4).

The newly discovered ~aped conversations - unavailable to the defense in the middle of a capital

trial when the state provided the witness's information for the first time and refused to provide

details such as date .01' birth to the defense- could not have been obtained with reasonable

diligence. La C. Cr. P. art. 851(3).

257) Ronnie Mrgan was -presented to the jury as a man with only the most mild of

hopes 1<.)1" speaking out against Michael AndersoLl. The truth is that he is a professional

informant who spoke out against Michael Anderson at a time when he was desperate and

singularly motivated by a desire to receive favorable treatment frol11 the state. Even if Mr.

Anderson were not entitled to a new trial as a matter of strict legal right, the ends of justice

would be served by the grant of a new trial. La. C. Cr. P. art: 851(5).

Afr. Anderson has still not been provided with evidence to which it is entitled
under Brady and Giglio and so brings such allegations as it is able to at this stage
and seeks additional discovery and./ilrther time to develop his claims

258) The defense has still not been provided by the state with any information

disclosing any hope, expectation or agreement, actual or tacit. Nor ha$ the state disclosed all

relevant information regarding tlworable treatment of Mr. Morgan in the state or federal system

for his willingness to assist the authorities. This is particularly important in the case of Mr.

Morgan where his federal sentencing information is sealed and the defense cannot obtain even

the most basic information about the structure of his sentence and the reductions.

259) The defense is continuing its investigations and seeking additional discovery from

the state in this regard. Furthermore, a detailed review of tbe numerous taped calls provided in

response to defense. subpoenas is not yet complete and may disclose additional evidence.

l-!ovvever, consistent with the Code, Mr. Anderson is presenting such of this claim as he is able at

this timeane! requesting additional time, compulsory process and a full evidentiary hearing to

determine
. the relevant facts and circumstances.
.

260) Even in the absence of additional prooC the circumstances glve rise to an

overwhelming inferei1ce of a hope or expectation and that the expectation was fulfilled. Mr.

Morgan was actively looking to assist the authorities in order to have his sentence reducecl.

Barely a month after' he gave evidence his federal sentence was reduced and the Orleans

prosecutors who called him as a witness at trial have bent over backwards- to try to have his state

sentence reduced. The'inference ofacleal or tacit understanding is inescapable.

86
XVII. An injusticc was donc to thc dcfcndant wlH~n thc state failed to 11I-eservean
exculpatory videotape that would have ensured MI". Anderson's acquittal

In violation (?f' Trombetta and Youngblood, the state caused or allowed to be

destroyed an exculpatOly videotape that they had spec(fically undertaken to
preserve,

261) The State's loss or destruction of the key videotape - after being advised that the

defense sought it for its exculpatory value and after promising the Court and the defense that it

would secure it - violated due process and warrants at the least the dismissal of the death

penalty. In violation of Mr. Anderson's rights under the 14th amendment, the Court did not give

an instruction to the jury that it ~hould infer the evidence was favorable based upon the state's

loss ordestructioll of it, and even worse the state capitalized on the loss or destruction by

presenting evidence that Mr. Anderson was not at the hotel on the night of the murders.

262) Mr. Anderson told police he was at a hotel at the time the 11lllrders occurred, His

defense counsel told the state and the Court that he was there. Defense counsel requested a

subpoena for th~video tape, The state in open Court represented that it was going to get the tape

and provide it to defense counsel. 49 The state than either never did or did and destroyed the tape.

Subsequently, the hotel aHowed for the destruction of the tape. The state then argued at trial that

though the computer for the hotel rellected that Mr. Anderson checked in on the night of the

murders thaUhe dates Oil hotel computers was always one day oiL

263) .The defense objectsancl contests lhis manipulation of the evidence. At the very

least, Mr. Anderson was entitled to all instruction to the jury "that if they found the State had

destroyed or lost evidence, 'they might infer that the true fact is against the State's interest.'"

Arizona v, Youngblood, 488 U~S. 51, 54 (1988); State v. Stephens, 00-KK-2472 (La. 03/16/0 I),

782 So. 2d 562, 564("Given its discovery obligations, the prosecution has 'a concomitant

responsibility to try in good faith to preserve important material and to locate it once the

deCendant moves for discovery"'); Gurley v, State, 639 So. 2d 557 (Ala. Crim. App. 1993)

(reversing conviction and death sentence on grounds that trial court erred in allowing officer to

testi Cy about material evidence that had been lost or destroyed and observing that, on remand, the

trial court should deterinine the degree to vvllich the State was to blame and that "depending Oil

the degree of the State's culpability ftH' the loss of the evidence, the court may decide that

indictmeilt should be dismissed or that the State should be precluded, 011 retrial from introducing

any evidence relating to the charred object ... or it may conclude thaI an 'adverse inference'

49 The court denie~1 Mr. Anderson compulsory process to o'btain the tape himself and the hotel refused to voluntarily
disclose the tape or a copy,

87
 instruction similar to the one given in Youngblood is sutTicient to ensure fairness to the

appellant").

2(4) There is no question in this case, that the State was put on notice that the defense

wanted the evidence preserved, that the State knew that the defense was asserting that it \vas

exculpatory, and that the State destroyed it or allowed it to be destroyed. In Arizona v.

Youngblood, 488 U.S. 51 (1988), the defendant was not taken into custody until six weeks aner

the offense, and the State did not attempt to use the material it destroyed in its case in chief.

Here, however, the clefendant immediately informed the police and the Court that the videotape

was exculpatory and available, and the State promised it would secure the videotape. It then

failed to secure the video tape and capitalized on its loss or destruction by claiming that the

statements that would be shown true by the video-tape \".'ere false. Pursuant to La. C. Cr. P.

851 (2) and 851 (5), a new trial should be granted.

XVIII. An injustice was done M ... Andel'soll when this COlll"t operated on the basis and
ultimately I'uled that matcdal in the J)istdet Attomey's possession that might meet
the definition ofwod<. product is exempt ""om disclosure under La. C. Cr. P. at't. 718,
Brady anti Naplle/giglio

265). The trial court has made clear its view of the law ~hat information in the

possession of the District Attorney that might meet the definition of work product are protected

.from disclosure under La. C. Cr. P. art. 718, Br(l(0J and Napue/Giglio.

2(6) It is now apparent that the District Attorney's file contains all manner of

disclosable information that the defense is denied access to because of the trial court's legally

erroneous understanding of the work product doctrine as it applies to prosecutors. The file

apparently contains extensive notesof.the July 2007 interview with Ton'ie Williams (even if the

video itsel f was not known to the trial prosecutors); records 0 f contacts and communications with

the snitches, the understandings reached with those snitches, letters provided in support of Rule

35 reductions, pleadings filed on behalf of snitches etc.; notes of prior inconsistent statements

made by Torrie Williams to ADAMorales; and, the Google map that Tonie Williams worked on

in her .July 200Tvideotaped interview.

267) Mr. Anderson shows prejudicial error in the denial of access to this and other

material due to him under the Due Process Clause and a new trial should be ordered. La C. Cr.

P. art. 851(2).

XIX. CONCLUSIONS

2(8) . As this is a capital case, special considerations apply. The Eighth Amendment

88
demands and the United States Supreme Court has "stressed the 'acute need' for reliable decision

making when the death penalty is at issue." Deck I'.Alissouri, 125 S. Ct. 2007, 2014 (2005)

Whatever the case may be in non-capital prosecution, the Eighth Amendment demands that

specitic consideration be given to the capital nature of the case in order to determine wbether the

rules and procedures aprHied in an ordinary case reach the standard of heightened reliability tbat

the law requires.

·In capital, proceedings generally, this Court has demanded that factfinding
procedures aspire to a heightened standard of reliability. This especial concern is
a natural consequence of the knowledge that execution is the most irremediable
and unhlthomable of penalties; that death is different.

Ford v. Wainwright, 477 U.S. 399, 411 (1986) citing, inter alia, Spaziono v. Florida, 468 U.S.-

447, 456 (1984), H' oodsol1 v. North Carolina, 428 U.S. 280, 305 (1976) (opinion of Stewart,

Powell, and Stevens, n.); see also, Caldwell v. Aiississippi, 472 U.S. 320, 323 (1985); Simmons

v. ,)'Ollt!7 Carolina, 512 U.S. 154, 172 (1994) (opinion of Souter, O'Connor, Ginsburg, n.) ("The

Eighth Amendment ... imposes a heightened standard for reliabil ity"); Salter.v!7ite v. Texas, 486

U.S. 249, 263 (1988) (Brennan, Marshall, Blackmun, JJ. concurring) ("[T]he difference of death

from all other punishments requires a correspondingly greater degree of scrutiny. .. Because of

this heightened Concern for reliability, "time and again the Court has condemned procedures in

capital cases that might be completely acceptable in an ordinary case.,,).50.

269) This heightened standard of reliability in fact finding is also reDected in

applicable standards ofinternational law, which hold that capital cases warrant "a particularly

stringent need for reliability in determining whether a person is responsible for a crime that

carries a penalty of death." lnt~r-American Commission for Human Rights, Report No. 97/03

(Graham v United States), para 27.

270) As the Louisiana Supreme Court has held, "[d]eath, in its finality, differs more

from life imprisonment than a 100-year prison term differs from one oJ only a year or two.

Because of that qualitative difference, there is a corresponding difference in the need for reli-

ability in the jury's determination that death is the appropriate punishment in a specific case."

50 Well before the Court established the ~'ight to counsel in all felony cases, Gideo/1 v. IVaimvright, 372 U.S.
335 (1963), it recognized that right in capital cases, Powell v. Alabama, 287 U.S. 45, 71-72 (1932). Time and
again the Court has condemned procedures in capital ca'ies that might be completely acceptable in an ordinary
case. See, e. g. Bullingto/1 v. Missouri, 45\ U.S. 430 (198\); Beck v. Alabama, 447 U.S. 625 (1980); Gree/1 v.
Georgia, 442 U.S. 95 (1979) (per curiam); Lockeff v. Ohio, 438 U.S. 586 (1978); Gardner v. Florida, 430 U.S.
349 (1977); IYooc!so/1 v. North Carolina, 428 U.S. 280 (1976). These decisions reflect an appreciation orthe
fundamental fact that death is different.

89
Slafe v. Alyles, 389 So.2d 12; 30 (La. 1979) (citing cases),

271) For the re,asons de.tailed above, the defendant seeks an evidentiary hearing in

order to present proof of the factual claims made in this pleading and then for this Court to grant

the relief sought.

RESPECTFULLY SUBMITTED:

Respectfully submitted,

?;~~"""",;;~::::3;::::::=:~;::;:':':::-~C__~. __.
Richard Bourke
La. Bar No. 31428
(504) 558-9867 (office),
(504) 558-0378 (fax) ,

Counsel f(JI' Air. Anderson

STATE OF LOUISIANA

PARISI-l OF OrtLEANS

Before me, Notary Public, personally came and appeared Richard Bourke, \\1ho, being duly
sworn,deposed that:
• he is a counsel for Michael Anderson;
• that in respect of each ofthe claims in the motion for new trial arising under art. 851 (3):
o notwithstanding the exercise of reasonable diligence by the defendant, the ne\v
eviden~e was not discovered before or during the trial;
o the names of the witnesses who will testify and a concise statement of the ne'wly
discovered evidence is contained in the motion;
o the lacts which the witnesses or evidence will establish is contained in the motion;
and
o the witnesses or evidence are not beyond the process of the court, or are otherwise
available.
• that in respect of each of the claims in the original and supplemental motions for new trial
arising under art. 851 (4):
o the specific nature of the error or defect is described in the motions; and,
o notwithstanding the exercise of reasonable diligence by the defendant, the error or
defect was not discovered before or during the trial
• That upon information and belief, the t~lcts alleged in the motion 191' new trial are true
alll,'l COI'I'ect
c - ' .
/\; / ' . / ,y'/
I Ii / / fJ"'~Z ,} ~. 0/ --;::J../J
'" I /t/ll ChnStfnelehrMnt.-------.
I
New 0 reans" · ' 1t '
LOUlSJana, liS.
8 th Clay
1 t'F b
a 'Ie ruary,
2010 . . V NotaryPublio
State of Louisiana
~.............
__-::-~ ~~ La. Bar No. 28122
_-----::;:::::......~_..... ------- Notary 10 No. 89275
-.<1 Statewide Jurisdiction
My Commission Is for Ute
Sworn to and subscribed before me this 8 th day of February, 2010, at New Orleans, LciuLsiana~

CERTIFICATE OF SERVICE

1 certify that I have served a copy of the foregoing pleading on the office of the Orleans

District Attorney and the Attorney General for the State of Louisiana this 8 tb day of February

2010 by first class mail.

--::~-::.::::::..~ ~
----- .,..,-..:=;'=-_::::::---
. . --=--"'"
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90