Opinion
No. 2020-KK-01080
12-08-2020
STATE of Louisiana v. Tyrone JONES
Writ application denied.
Johnson, C.J., would grant and assigns reasons.
Weimer, J., would grant.
Crichton, J., additionally concurs and assigns reasons.
Johnson, C.J., would grant and assigns reasons:
The court of appeal sets a dangerous precedent by permitting the Orleans Parish District Attorney to pre-emptively invoke the right of a victim to refuse to speak to counsel for the defendant in a criminal prosecution. In my opinion this precedent is unconstitutional and based on a fundamental misunderstanding about the relationship between counsel for the State and a crime victim or complaining witness. I find it particularly troubling that the sanctioned request came from the Orleans Parish District Attorney, the office whose practices of using fake witness subpoenas and jailing sexual assault victims as a means to effectuate criminal prosecutions are the subject of ongoing federal litigation.
See Singleton v. Cannizzaro , 956 F.3d 773, 784 (5th Cir. 2020) ("[Orleans Parish prosecutors] allegedly violated the rights of victims and witnesses with no cases pending against them. ... This case is likely Plaintiffs’ only means of legally redressing the harms they suffered as a result of [Orleans Parish prosecutors]’ alleged conduct.").
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The relevant section of the Louisiana victims’ rights law invoked by the prosecution in support of its request for a court order prohibiting defense counsel from contacting the victims in this case reads as follows:
The victim and the victim's family may refuse any requests for interviews with the attorney for the defendant or any employee or agent working for the attorney for' the defendant. If the victim is a minor, the parent or guardian of the victim may refuse to permit the minor to be interviewed by the attorney for the defendant or any employee or agent working for the attorney for the defendant. ... Willful disregard of the rights of victims and witnesses as enumerated in this Paragraph may be punishable as contempt of court.
La. R. S. 46:1844(C)(3). This statute anticipates that counsel for the accused may ask a crime victim or complaining witness for an interview during the course of a criminal prosecution. Indeed, where the complaining witness is also the only eyewitness to the crime, as is commonly true in robbery and sexual assault cases, the Sixth Amendment requires counsel in most instances to try to interview the victim or complainant. "Guided by Strickland, we have held that counsel's failure to interview eyewitnesses to a charged crime constitutes " ‘constitutionally deficient representation.’ " Anderson v. Johnson , 338 F.3d 382, 391 (5th Cir.2003) (citing Bryant v. Scott, 28 F.3d 1411, 1418 (5th Cir.1994) ). Of course, La. R.S. 46:1844(C)(3) gives victims the right to refuse when asked for an interview by the defense. The prosecutor, who is counsel for the State and not the victim, cannot act as a victim's agent or attorney in conveying their refusal to the defense. The prosecutor does not represent the victim[s]. "The prosecutor generally serves the public and not any particular government agency, law enforcement officer or unit, witness or victim." The American Bar Association's Criminal Justice Standards for the Prosecution Function , Standard 3-1.3 (Fourth Edition, 2017). It is not infrequent for the interests of an individual victim and the State to diverge. The prosecutor is not in a legal, ethical, or practical position to act as the prosecutors did in this case; either as defense counsel's agent (in anticipating and conveying a defense request to speak to the victim) or the victim's agent (in conveying the victim's response to defense counsel's request), let alone both. Permitting the prosecutor to assume a self-appointed mutual gatekeeper role between victims and counsel for an accused will weaken the statutory and constitutional protections intended for victims, not strengthen them.
For these reasons, I would grant the writ and reverse the ruling of the court of appeal. There is no legal authority for the order issued by the trial court and such orders can—and frequently will—jeopardize the Sixth Amendment rights of accused defendants to the effective assistance of counsel.
CRICHTON, J., additionally concurs and assigns reasons:
I agree with the denial of the writ in this matter. As the court of appeal noted, Article I, § 25 of the Louisiana Constitution provides that a victim shall have "the right to refuse to be interviewed by the accused or a representative of the accused." Moreover, La. R.S. 46:1844(C)(3) provides that a victim "may refuse any requests for interviews with the attorney for the defendant or any employee or agent working for the attorney for the defendant" and "[w]illful disregard of the rights of victims. ... may be punishable as contempt of court." In light of these provisions and the victims’ affidavits indicating they do not wish to be contacted, I agree with the court of appeal that the trial court did not abuse its discretion in prohibiting the defendant from contacting these victims under the facts of this case.