Opinion
No. 2021-K-01788
02-15-2023
STATE of Louisiana v. Kenneth James GLEASON
Application for rehearing denied.
Hughes, J., concurs and assigns reasons.
Crichton, J., concurs and assigns reasons.
Hughes, J., concurs with reasons.
The application for rehearing is properly denied on the merits of this case, in accordance with the majority opinion of the court.
I write separately to emphasize that in my opinion, especially after serving eight years on the court of appeal, where appeals in criminal cases are of right, I have always found the lawyers of the Louisiana Appellate Project to act with the utmost competency and professionalism, as was the response to the state's writ in this case.
Crichton, J., concurring in the unanimous denial of rehearing and assigning reasons:
As an initial matter, I question whether an application for rehearing is appropriate here. "A rehearing is requested after a judgment is rendered and a party wants the judgment modified." Perkins v. Entergy Corp. , 756 So.2d 388, 416 (La. App. 1 Cir. 1999). See also 5 C.J.S. Appeal and Error § 798 (November 2022 Update) ("Generally, the purpose of a rehearing on appeal is to afford litigants an opportunity to have an erroneous judgment corrected by the appellate court deciding the case ...."). The applicant for rehearing in this case, however, does not seek a modification of the judgment. Instead, the applicant takes issue with a one sentence footnote in a concurrence, which I authored, and makes the unusual request that the footnote in the concurrence—and only the footnote—be modified.
Concurrences provide useful insight into the thoughts of the judges who write them. In concurring opinions, a judge will agree with the decision of the majority, but write separately for one or more reasons. I view a concurrence similar to the intelligence of a future day, much like a dissent is an appeal to the intellect of tomorrow. That insight has particular value to other litigants generally, as well as the public and political process overall particularly, in a case in which taxpayers pay for the representation, reimbursement of expenses, and costs. A concurrence, however, is not the judgment. Nothing in it binds a party and it has no precedential effect. Therefore, I decline to grant this application for rehearing.
In his 1963 article "The Role of Dissenting Opinions in Louisiana," 23 La. L. Rev. 673 (1963), Joe W. Sanders explained: "A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissent judge believes the court to have been betrayed." Id. at 674-75 (citation and quotation omitted).
Another matter that deserves attention is the heinous nature of the hate crimes in this case. Defendant was convicted of first-degree murder related to his shooting of a Donald Smart, a forty-nine-year-old black male, based upon the aggravating circumstance that he previously acted with specific intent to kill or inflict great bodily harm that resulted in the killing of Bruce Cofield, a fifty-nine year old black male. Defendant was also implicated in the attempted murder at the home of Tonya Stephens, who lived with her adult sons; the Stephenses were the only black family residing in the neighborhood where they lived. DNA at two of the scenes, along with other evidence, ultimately tied all three incidents – which occurred within several days of each other – together. After defendant was sentenced to the penitentiary and while his appeal was pending, he committed suicide thereby, in my view, waiving his appellate rights
With those initial points set forth, I briefly address the merits of the Louisiana Appellate Project's (LAP) request, contained in the procedural vehicle of an application for rehearing, that I modify the one sentence footnote of my concurrence. LAP asserts that I unjustifiably disparaged it and perceives my comments as an attack on LAP as well as on the public defense system as a whole. Nothing could be further from the truth. I have expressed my view of the public defense system previously, and those views are worth repeating:
It is axiomatic that those accused of a crime are entitled to effective assistance of counsel. State v. Peart , 621 So. 2d 780, 786 (La. 1993). See also Gideon v. Wainwright , 372 U.S. 335, 345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ("[L]awyers in criminal courts are necessities, not luxuries."). I agree with the majority opinion in all respects, but write separately to highlight the critically important constitutional work in which public defenders engage. La. Const. art. 1, § 13.... Finally, I
emphasize that the work of a public defender is no less important than any other officer of the court. As such, I encourage their continued diligence to accomplish the difficult work public defense entails, with an eye to potential assistance through legislative action.
State v. Covington , 2020-00447 (La. 12/1/20), 318 So. 3d 21 (Crichton, J., concurring).
LAP is a vital part of that public defense system and I do not believe that my brief footnote disparaged it, besmirched it, stained it (to adopt the choice of words from the rehearing application) or otherwise diminished it in any way. Applicant for rehearing, I believe, mistook a difference of opinion as to how the mission should be performed for disdain for the mission itself. I stand by the view expressed in the referenced footnote insofar as I question LAP's extensive deployment of resources and time on this appeal. In any event, because the application for rehearing does not, in fact, ask for any modification of the judgment, I concur in its denial.