dIn 2008, a judge sentenced Derek Harris to 15 years for selling a $30 bag of cannabis. Sound extreme? If Harris hadn’t had a record, he surely would not have gotten 15 years for this small-time drug sale. But those 15 years were not enough. The district attorney in Harris’ case took it a step further and filed to have him classified under the habitual offender statute. With one court filing, Harris’ past convictions, which he already paid the price for, were used against him yet again to sentence him to life without parole (LWOP). Harris, like so many others labeled by the (in)justice system as Habitual Offenders, was sentenced to death by prison. Harris started the arduous appeals process, desperately pleading that some judge, at some level, recognized that dying in prison was too extreme. He hoped they would agree that only a bad lawyer could have let this happen. Thankfully, even between uninspired lawyers and bureaucratic red tape, Derek’s latest lawyers (the only good ones) convinced the Louisiana Supreme Court (LASC) to overturn their previous decision. With their ruling out last week, on his sixth stage in his process, he won the opportunity for his case to be reviewed.
The ultra-punitive nature of prosecutors and judges is only one part of the courtroom equation that explains why Louisiana leads the nation in mass incarceration. Other parts include (a) defense counsel, and (b) restrictive appellate rules that can block even the most unconstitutional actions from being reviewed.
The LASC ruling declared that appellate judges CAN review errors during sentencing, including ineffective assistance of counsel. This is a major victory in creating fair appellate rules--but how many people will be able to benefit? It will take a few more cases to test the boundaries of this ruling, but our calculation is that those who tried to get their sentences reviewed (including when judges wrongfully thought the application of a Habitual Offender sentence was mandatory) but were categorically barred from raising the issues, will have a new window for appealing their case. For those people denied under Meline v. Louisiana (1996), they may have a year to build and file their case. While ultimately this is TBD, impacted people should seek legal advice.
Keep reading for a deeper dive into the legal analysis of this case.
When lawyers aren’t what they should be - Ineffective Assistance of Counsel (IAC)
One of our foundational democratic values is that people accused of crimes have the constitutional right to not just a lawyer, but an effective lawyer who covers all the bases on legal procedures. Meaning a lawyer is constitutionally obligated to explore every avenue and try their hardest to defend their client. For example, if someone has an alibi witness, the lawyer is constitutionally obligated to investigate and interview that person. But there are a lot of holes in this system. For one, though there are countless stories about how overworked and underpaid even the “best” public defenders are, meaning they always wish they could have done more. And how thorough of a job are the “good” lawyers doing? What about the “so-so” lawyers who don’t even specialize in criminal defense, yet are appointed by the court? Most of them don’t really care much about their client, or have the time to care, and will make the same flat rate regardless of the case’s outcome. Furthermore, what about the conflict of interest when public defense is partially funded from the fines following someone’s conviction?
These are just some reasons why a lawyer does not rise to the constitutional standard of “effective.” Regardless of the reason, this is one way innocent people are found guilty, or someone ends up in Angola with cruel and unusual punishment. Another hole in the system is that it can take some time for the average person to realize precisely where their case went wrong. If they realize the fault lies with their lawyer, they can raise a claim of Ineffective Assistance of Counsel (IAC)--they can officially claim their lawyer didn’t properly do their job, which, as we said, is a constitutional right. But (yet another hole) people cannot raise IAC on a direct appeal, because that is reserved for issues that were “Objected” to at trial, where there is some dispute on the trial record to review. This creates a problem, of course, because a sleeping lawyer can’t object to their own nap. So this kicks the can further down the road (meaning more time behind bars) and requires a second review AFTER the direct appeal.
Yet another hole: what if your direct appeal lawyer is also ineffective? This usually happens when an appellate lawyer fails to make an argument that an effective lawyer should have. That means someone needs to file a post-conviction petition, after being denied on the direct appeal, and make claims against BOTH of their lawyers. Because it is difficult to get a lawyer to represent you on a post-conviction petition, nearly all of these filings begin as a pro se filing, hopefully with the help of a jailhouse lawyer, or “inmate counsel.” VOTE’s founders and leaders all served as inmate counsel, and collectively we have filed hundreds of petitions.
Lastly, one of the biggest problems with IAC is exactly what Justice Thurgood Marshall warned in Strickland v Washington: the standard is so high, nobody will be able to prove it. To actually WIN an IAC, someone must prove that their counsel failed to do something, or made an objectively wrong non-strategic decision, and this ineffective performance puts doubt on the conviction. Basically, is it reasonable to think the situation would have turned out differently? (Usually, no matter how bad the lawyer, appeals courts will say “it didn’t impact the outcome,” or that it is a “harmless error.”)
The bottom line is that it is very difficult to make an IAC claim. There are endless barriers for incarcerated people to claim IAC, and Derek had to seek review by judge after judge.
Derek Harris’ Claims of IAC
The first thing that is clear in Derek Harris’ post-conviction petition to the LA Supreme Court is how difficult it is to get the courts to review bad lawyering. After waiting four years between his 2004 arrest and 2008 sentencing, it took Derek another TWELVE YEARS to get to the point where the LA Supreme Court said that his case may be reviewed. It still hasn’t been actually reviewed. That comes next, back at the trial court level.
Derek claimed (1) his trial lawyer should have presented a pretty standard “entrapment defense,” whereas the police initiated the drug deal, and the evidence was a video without audio, (2) his trial lawyer should have objected to the Habitual Offender being “mandatory,” because it was not and is not, (3) his trial lawyer should have told him the prosecutor offered him 7 years (this is required under the U.S. Supreme Court, and written into Louisiana law following VOTE’s 2019 advocacy), and (4) his appellate lawyer should have raised the claim about the no-audio DVD.
In 2013, one appellate judge (dissenting from the ruling) saw the situation clearly: the trial judge (a) admittedly didn’t believe Derek, an honorably discharged vet who has had PTSD and drug issues following his return, deserved 30 years in prison, much less to die in prison, and (b) it was clear that the trial judge thought that imposing the Habitual Offender sentence was mandatory. The ruling went against him though, so Derek had to keep trying.
Ironically, the state and federal courts put strict time limits on filing for review, because even if a case is continuously in the courts, from one stage to the next, every case like Harris' will usually span over a decade.
Finally, in 2016, Harris got into district court with his post-conviction petition and his IAC claims.
Post-Conviction Relief, overturning Melinie, and the New Ruling within LA v. Derek Harris
Along with Derek’s IAC claims listed above, he also claimed that the judge should have known that LWOP was not mandatory. In other words, it should not be solely the defense lawyer’s burden to point out every part of the law--certainly one would think anyone issuing a death sentence would know the legality around it.
In 2016, District Court Judge Laurie Huelin ruled that issues regarding sentencing, including IAC and Habitual Offender sentences, cannot be heard on post-conviction relief. Based on a ruling in 1996 (Melinie) judges have interpreted that to mean the 6th Amendment right to counsel at sentencing is not protected under Louisiana law. Overturning Melinie is the heart of Derek’s case. Judge Huelin also ruled that Derek failed to prove his IAC claims. This should come as no surprise, as Derek’s post-conviction attorney did not bother to call trial counsel to the stand. Examining the lawyer is the standard process for every IAC hearing. Basically, Derek was left with a lawyer ineffectively claiming ineffective assistance.
Making matters even worse, Derek Harris had to then argue, pro se, that his post-conviction attorney was also ineffective.
The 2020 LASC Ruling: People’s 6th Amendment right to counsel during sentencing, including Habitual Offender proceedings, can be reviewed by the court
This may seem obvious, because where else would you fight an issue about your lawyer failing to object to the Habitual Offender sentence enhancement? Essentially, the past rulings in Louisiana served to make Derek’s sentence, to die in prison, immune from review, bulletproof, and above the law. Likewise for similar people who have been stonewalled over the past 24 years. The State’s position on Derek Harris being sentenced to die in prison for a tiny bag of cannabis is that the LWOP cannot be reviewed by the appellate judges. The State’s lawyers actually take the position that Louisiana should hand out such severe sentences, and, no matter how faulty the process, the sentence is untouchable. But last week, LASC disagreed with the State’s attorneys.
Previously, people who have turned to the Federal courts for relief would then be told the state court shot you down for “adequate and independent state grounds.” This creates a classic feedback loop, where non-review in one court justifies non-review in another court because it was determined that it is not reviewable.
This new ruling puts hundreds of people in an interesting position. Those who have had similar such claims will need to go back to court. The first case to make its way up the chain, from district court petition on up the appellate chain, will create a precedent as to whether the Harris case is applied retroactively. One appeals circuit could rule that it is retroactive, while another circuit could rule that it isn’t. The precedent won’t be binding on the whole state until, like Derek Harris, the case goes all the way to LA Supreme Court.
Likewise for those challenging their state sentences in federal court. The only way to be certain how the feds will consider this new position is by filing a petition and trying. The Feds are effective at barring the courthouse door since the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA). Using restrictions such as a 1-year filing deadline, or allowing just one “bite at the apple” (meaning your first petition needs to make every claim). Federal time deadlines also occasionally have more leeway when new rules are announced, such as high profile decisions in Miller, Montgomery, and Ramos. When someone files after a new ruling, there will be debates about issues like “procedural vs. substantive rule,” or “watershed rule,” and whether non-review would be a “miscarriage of justice.” It is quite likely that any federal petition would either be denied or held onto, awaiting the Louisiana court’s final position on the issue.
Justice Crichton, who Justice Genovese agreed with, took his Harris concurring opinion a step further and spoke directly regarding the hundreds of people who have been told, essentially, there is no 6th Amendment right to effective counsel at sentencing. Crichton invoked the debate in Ramos, about the State’s worry of upsetting their status quo:
In its valiant search for reliance interests, the dissent somehow misses maybe the most important one: the reliance interests of the American people. Taken at its word, the dissent would have us discard a Sixth Amendment right in perpetuity rather than ask two States to retry a slice of their prior criminal cases. Whether that slice turns out to be large or small, it cannot outweigh the interest we all share in the preservation of our constitutionally promised liberties. Indeed, the dissent can cite no case in which the one-time need to retry defendants has ever been sufficient to inter a constitutional right forever. Ramos, 140 S.Ct. at 1408.
Justice Crichton writes, plainly, that the administrative burden of reviewing cases such as Derek Harris’ “is far outweighed” by the Sixth Amendment right to effective counsel at both trial and sentencing phases. Similar to the Ramos ruling on non-unanimous juries, the District Attorneys of Louisiana and the district court judges of Louisiana might have pondered whether their unique brand of “justice” would hold up under further scrutiny. Interestingly, all the district attorneys and judges are up for election this November 3. J. Crichton thoughtfully applies the Ramos rationale to overturn the instant case, and it appears that at least two LASC justices are firmly in support of someone returning to the courts after previously being told that IAC during sentencing cannot be reviewed.
Unlike Non-unanimous jury convictions, where a retroactive application of Ramos could mean throwing out an entire conviction, the Harris cases would be more like Miller and Montgomery. Those cases also applied to sentencing and threw out those unconstitutionally mandatory LWOP sentences for children still left these people convicted of a crime. Being re-sentenced, or simply having a Habitual Offender sentence enhancement tossed out, does not require witnesses and evidence and juries. The State would not be in such a tight position if dozens, or perhaps hundreds, of sentences are reviewed.
What’s next? Getting back into court
Anyone with a claim that centers on ineffective assistance of counsel during sentencing or legal challenges to the Habitual Offender laws, should consider that a one year clock just started ticking. This may also preserve a federal petition after you have exhausted your state remedies, but that bridge would need to be crossed when the time is right.
There is no need to hastily get “just anything” in immediately. Whether someone is Inmate Counsel, pro se, a family member, or an attorney: it would be wise to check in with VOTE and the Promise of Justice Initiative, to be sure you have the best representation and collectively do our best to ensure this ruling has the broadest impact on the most people.
Excellent work, courage, and faith exhibited by Derek Harris and our incarcerated brothers who supported his petitions along the way. And major shoutout to Harris' (hopefully last) lawyer, Cormac Boyle, a longtime death penalty investigator, who earned his law degree and is putting it to the best use with Promise of Justice Initiative.
Read the full opinion, Louisiana v. Derek Harris here.