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Only In Louisiana: Failing To Meet Constitutional Obligations And To Do What SCOTUS Tells Us To Do

Posted by Alex K. Kriksciun | Feb 20, 2017 | 0 Comments

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In 2012, the United States Supreme Court handed down Miller v. Alabama.  In that case, a 14-year-old named Evan Miller killed his drug supplier by beating him with a baseball bat and burning his trailer home with him inside.  By all accounts, Evan had a pretty terrible childhood.  He had survived years of physical abuse by his father, attempted suicide four times (the first time at the age of 6!), spent years in foster care and group homes, was returned to his alcoholic and drug-addicted mother, and began using drugs and alcohol himself.  All this before the age of 14.

Perhaps unsurprisingly, the powers that be in Moulton, Alabama decided to try Miller as an adult.  He was convicted of murder and sentenced to a mandatory term of life imprisonment without the possibility of parole.  After several rounds of appeals, Miller filed a motion for new trial, contending that sentencing a 14-year-old to life with no possibility of parole was cruel and unusual punishment.  The Supreme Court agreed. 

Now the term “Miller hearing” has been added to the defense lawyer's lingo.  A Miller hearing is a pre-sentence hearing where the trial court hears possible mitigating evidence about a defendant who has been convicted of a crime that would normally merit an automatic life sentence.  Topics that should be covered during the hearing include the defendant's background, his family history and educational environment, scientific/expert evidence regarding child or adolescent brain development, the defendant's level of remorse, potential prospects for rehabilitation, and the facts surrounding the crime.  

The defendant who is the subject of the Miller hearing can still be sentenced to life without the possibility of parole, but Miller itself makes it clear that this should occur very infrequently.   In response to Miller, the Louisiana Legislature enacted a statute mandating that a hearing take place.  The statute states that juveniles that are the subject of Miller hearings can either be sentenced to life with parole possibility after 35 years or life without parole, though the latter is only to be utilized in the “worst cases.”

Which brings us to the situation in New Orleans. 

Unfortunately, there have been many instances, both pre- and post-Miller, where a juvenile has been convicted of murder in Orleans Parish.  One such case is that of Joseph Morgan, who was 16 years old when he shot and killed a fellow 16 year old outside a nightclub about four blocks away from Criminal District Court (where his case was tried).  Morgan was convicted in August 2015 – the jury apparently deliberated less than three hours before rendering a verdict.  In most cases, if a defendant is convicted at trial, he will be remanded over until sentencing.  So it was with Joseph Morgan.

What makes Morgan's case different than most others is that it took 18 months to sentence him.  After looking at the docket master, it appears that his sentencing was continued at least 10 times prior to sentence being rendered two weeks ago.  The reason?  There was apparently no money to conduct a proper mitigation investigation into the defendant's background and the other factors listed above.  Judge Arthur Hunter declared Morgan indigent on January 3 after his lawyer Tom Shlosman filed a motion requesting the same.  Mr. Sholsman, an excellent defense lawyer doing the profession a great service by taking this case pro bono, also filed a motion to determine a source of funding for Morgan's Miller hearing.

 At a hearing on the latter motion, officials from the state public defender board testified that a proper investigation could cost up to $75,000 and that the board (shockingly!) was in no position to provide Mr. Sholsman with any funding whatsoever.  Derwyn Bunton, the Orleans Parish chief public defender, testified that his office has no resources to conduct a proper Miller mitigation investigation.

About the Author

Alex K. Kriksciun

Attorney at Law/Notary Public Alex K. Kriksciun has devoted most of his legal career to defending the rights of people accused of crimes and the rights of people harmed by the negligence of others.  Whether the case involves a municipal citation, a life imprisonment without parole case, a wrongf...

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