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From Insult to Injury: Paying a Price for the Privilege of Prosecution

Posted by Alex K. Kriksciun | Sep 27, 2018 | 0 Comments

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Earlier this week, Bill Cosby was sentenced to three to ten years in a Pennsylvania state prison.  It was a stunning fall from grace for “America's Dad.”  What I was more interested in was that Cosby was ordered to pay the state $43,000 for the “costs of prosecution” in addition to a $25,000 fine.

This reminded me of a situation I witnessed in Orleans Parish about six months ago.  A man was in court for sentencing after being convicted of aggravated rape.  Normally sentencing on an aggravated rape is rather perfunctory, considering that the only available penalty is life imprisonment.  This case was a little bit different, however. 

Apparently, this guy had some money because the state filed a motion to tax the defendant with the costs of his prosecution (which amounted to over $57,000).  The judge granted the motion.  This is something that I have never seen before, so I figured that the situation merited me looking into. Louisiana Code of Criminal Procedure article 887(A) states that a person convicted of an offense “shall be liable for the costs of prosecution or proceeding, whether or not costs are assessed by the court, and such costs are recoverable by the party or parties who incurred the expense.”  However, a person “shall not be liable for costs if acquitted or if the prosecution is dismissed.”

In my mind, this raises a whole host of issues.  First, was the order granting the prosecution's motion to tax costs in the case I witnessed 6 months ago an empty gesture?   Considering that the defendant will presumably be spending the rest of his life at the Louisiana State Penitentiary, he of course has no incentive to pay the state back in the first place.  One must consider whether the prosecution's filing of the motion was simply pointless and/or a waste of time and resources.

Second, if the prosecution can recover the costs of prosecution when a person is convicted of an offense, why can the person not recover the costs of their defense if he or she is acquitted, or the charges dismissed?  What's good for the goose is good for the gander, right?  It seems only fair and equitable that a person who has their charges dismissed or acquitted should be able to recover the costs associated with the defense of a prosecution if they can be forced to pay costs of that prosecution if convicted.  According to Wikipedia, this was the rule in England and Wales until relatively recently.

Admittedly, most criminal defendants in Louisiana (as elsewhere in America) are represented by public defenders.  I am not suggesting that persons represented by public defenders should be able to recoup costs associated with a public defense, considering that those persons have not “paid” any money out of pocket for that defense.  But if a person hires a lawyer and is eventually cleared through acquittal or dismissal, that's a different situation.

Third, I believe that LSA-C.Cr.P. art. 887 creates a perverse incentive for a DA's office to “go after” criminal defendants that have money, as was the case in the matter of the aggravated rapist noted above.  To be sure, my educated guess is that the vast (and I do mean VAST) majority of criminal defendants will never encounter such a situation.  But rich people commit crimes too.  Allowing the state the discretion on whether or not to file a motion to tax costs allows the DA to stick it to criminal defendants with money he simply does not like while allowing other criminal defendants with money or defendants without money to skate free.

Which leads me to my final issue, is LSA-C.Cr.P. art. 887 constitutional?  InState v. Rideau, 05-1470 (La. App. 3 Cir. 11/02/06); 943 So. 2d 559, the Louisiana Third Circuit considered this very question.  For those of you who don't know, Wilbert Rideau (who I've met and who was the subject of State v. Rideau) was convicted of first-degree murder and sentenced to death in 1961.  He appealed his conviction four times and was eventually tried and convicted of manslaughter in 2005 at a fourth trial.  He was subsequently released from Angola because he had already served more than the maximum sentence for manslaughter that was in place when the offense was committed.  Wilbert was and remains a hated man in his hometown of Lake Charles and Calcasieu Parish.

After his fourth trial, the state filed a motion to tax Wilbert with costs in the amount of $127,905.45.  The Third Circuit noted that the “the trial court did not inform Rideau, at sentencing, of the amount of the court costs he eventually was assessed to pay. Instead, the trial court rendered the order sixty days after sentencing casting Rideau with costs in the amount of $ 127,905.45. Because he was never informed beforehand, Rideau was unable to contest, either at sentencing or at a subsequent reconsideration hearing, the kind or amount of costs imposed, to attack imposition of the total amount as excessive and abusive or to establish that issuance of a judgment and enforcement would pose an undue hardship in the future on him.”  The court ultimately concluded that the trial court was not authorized to issue a judgment taxing him with indigent defense costs, expert witness fees, and expenses.  The Third Circuit also held that the parish, rather than the district attorney's office, was the proper party to seek to recover the “prosecution costs” associated with the case.  The state appealed the Third Circuit's decision to the Louisiana Supreme Court and lost.

The Rideau case also is a good example of a DA's office simply trying to stick it to a defendant they don't like.  Wilbert is very controversial in the Lake Charles area; the DA's decision to try him for a fourth time in 2005 was generally met with jubilation in the community and the manslaughter verdict (rather than one of murder) was met with an outcry.  It seems apparent that the Calcasieu DA's office was merely trying to send one more “eff you” to Wilbert on the way out the door because they knew that he would be released from Angola and there was nothing they could do to stop it. 

If you are faced with this issue, are dealing with overbearing prosecutors, or simply under investigation by law enforcement, call the Law Office of Alex Kriksciun today!

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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