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Louisiana’s death penalty prosecutor takes aim at his legal opponents

Louisiana House of Representatives
Wikimedia Commons

Louisiana’s death penalty prosecutor takes aim at his legal opponents

The death penalty is costing the cash-strapped state of Louisiana tens of millions of dollars a year. But there’s one state employee who’s massively profiting off its continued existence.

Hugo Holland’s fingerprints are on the bulk of Louisiana’s recent death sentences. He’s been hired by over a dozen district attorneys to prosecute death penalty cases at a rate that pays him more than Governor John Bel Edwards.

Holland spent two decades as an assistant district attorney at the Caddo Parish District Attorney’s office, which until recently churned out more death sentences than any other in the state, not to mention most others in the nation. He was effectively fired in 2012 after he and a colleague were caught lying on a federal application to buy M-16 automatic rifles for the DA’s office. The whistleblower claimed in a lawsuit that Holland generally liked to play cop, “outfitting [his] vehicles with lights and sirens, making stops, and wearing SWAT-type clothing during work hours.”

Though he was forced to resign when the scandal went public, the alleged fraud didn’t sink Holland’s career. Instead, his influence has expanded far beyond Caddo Parish. Records show he had lucrative contracts in nine different parishes last year.

Holland has secured ten death sentences in Louisiana over his career, both as a Caddo prosecutor and in his new role. Five were later overturned. Overall, a recent study of Louisiana’s death penalty found that more than 80 percent of death sentences in the state have been overturned since 1976. Prosecutorial misconduct was responsible for 25 such reversals.

And the odds have gotten increasingly tough for capital prosecutors. Fifty of the 52 capital cases that have been resolved since 2000 were reversed, largely thanks to the emergence of dedicated nonprofit offices that handle death penalty trials and appeals for the public defender board.

“Not only have reversals become more common than new death sentences… but in the new century exonerations have outpaced executions,” the study noted. “A better funded capital defense system in Louisiana allows more of these errors to be discovered.”

Holland has started going beyond the courtroom to try to defeat the organizations making it harder for his death sentences to stick. His old office, Caddo Parish, pays him $900 a day to lobby the state legislature to preserve the death penalty and weaken capital defense programs.

Last year, he secured a key victory against the “anti-capital punishment zealots” he claimed control the state’s public defense funds.

“They spend money on experts like a drunk sailor in Thailand goes through hookers,” he complained to the Advocate.

Professing a concern for overextended public defenders, Holland argued at a 2016 committee hearing that the public defense budget was being eaten up by “boutique law firms” that were lavishing a luxury “Cadillac defense” on poor people facing capital punishment.

Hugo Holland (right, pointing) testifying
screenshot, Louisiana House of Representatives

“Local public defenders that I deal with every day across the state who are struggling to represent the indigent and provide them competent representation are overworked because the current board is composed of individuals who can’t repeal capital punishment in front of the legislature and are trying to price it out of existence in the court system,” he testified.

Holland was speaking in support of legislation to divert funding from capital defense to the local public defenders. The bill also reduced the board’s membership from fifteen members to eleven. District attorneys came out in force to support the bill, accusing the public defender board of mismanaging money by dedicating a third of it to capital cases.

It’s true that indigent defense in Louisiana is dismally underfunded. New Orleans’ public defenders infamously started refusing new felony cases last year as a result of the budget shortfall.

But blaming the capital defenders is a red herring. Death penalty cases have far more complex constitutional requirements than a typical criminal case because the stakes are so high. Death row inmates are entitled to a winding path of appeals in state and federal courts that demands years of investigation and litigation. These special circumstances require enormous amounts of money, time, and resources on both sides. In the past, public defenders have struggled to adequately handle these complicated cases on top of the rest of their responsibilities.

“Having carried a caseload myself in the public defender’s office, I could not also defend a capital case,” one death penalty defense attorney testified at the same House committee. “I spend many hours a week, full time, working the capital cases I have now, because they are extremely complicated.”

The Public Defender Board also testified that the bill obscured the real problem: the unreliable and shrinking pool of funds used to fund public defense.. Louisiana is the only state in the nation that funds its courts primarily with fines and fees, such as traffic tickets. This funding scheme is known as a “user pay” system, in which the “users” are predominantly poor defendants of color. The result is an unpredictable budget— and an inherent conflict of interest for the public defenders. If their clients plead guilty, they must pay additional fines and fees that feed into the public defense budget.

“We are paid to lose,” Orleans Chief Defender Derwyn Bunton testified. “That is perverse.”

Still, the legislation passed and was signed into law with little opposition. Two capital defense organizations confirmed to the Advocate that their budgets were subsequently cut in half.

Holland’s concern for the state’s fiscal health might be better focused on his own drain on taxpayers. His lofty commissions for capital prosecutions — a highly expensive process that, unlike legally mandated capital defense, is a choice prosecutors make — have netted him hundreds of thousands of dollars a year. His own misconduct has also fueled some of the appeals he despises; he’s been accused of withholding exculpatory evidence in multiple death row cases. One of his most high-profile death sentence pursuits racked up a taxpayer bill of $14 million over 15 years. The gun grab that got him fired also resulted in a legal settlement of $447,000.

According to the Advocate, Holland is not finished with legislative tinkering. His next big priority will be to “unclog” the “bottleneck” of post-conviction relief, thereby speeding up executions before a sentence can be thoroughly challenged.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

Can Marilyn Mosby still make good on her progressive promises?

Can Marilyn Mosby still make good on her progressive promises?

Kelly Davis remembers it clearly. It was early May 2015, and she was standing in the waiting room of her doctors’ office. On the radio, the voice of Baltimore’s new State’s Attorney, Marilyn Mosby, rung out. Mosby announced that Freddie Gray’s death had been ruled a homicide, and her office would bring criminal charges against the six police officers involved in the arrest and “rough ride” that led to his death.

“No one is above the law,” Mosby declared from the steps of the city’s War Memorial Building.

A wave of relief swept through the waiting room. “We were like, ‘we knew it would be her, we knew she would make a difference,’” Davis told In Justice Today.

But over the course of the next two years, Davis and others in Baltimore felt a growing sense of disappointment. The promise of change that came when Mosby beat incumbent State’s Attorney candidate Gregg Bernstein, some felt, went undelivered. That disappointment began with the mistrials, acquittals, and dropped charges against the officers in Gray’s case, but didn’t end there. Two of the officers she indicted filed a lawsuit against Mosby, accusing her of defamation.

Mosby ran on a campaign that promised change, vowing to prioritize repairing the “fractured relationship between law enforcement and communities.” Mosby also promised to drive down recidivism by giving second chances for first-time, nonviolent drug offenders. But as with the prosecutions of those involved in Gray’s death, Mosby has not successfully followed through.

And for Davis, justice, or the lack of it, is personal. Two years ago, Baltimore police officers chased her husband, Keith Davis, Jr., from the scene of a robbery into a garage and fired 44 bullets at him, hitting him three times. He survived, but is now in prison, fighting a homicide charge. Bullet fragments remained lodged in his neck and face for more than two years, until they were finally removed in July.

Davis maintains that he had nothing to do with the robbery of a driver on the day he was shot by police, and says that he ran from the officers along with many other people at the scene of the crime. Accounts of what happened in the garage where he attempted to hide that day vary; the police allege Davis pointed a gun at them, while Davis says there was no gun in his hand, and that a gun only happened to be in the garage. Police said he fit the description of the man who robbed the driver, but in fact, the driver had described a man with braids, and Davis had a shaved head.

When Davis left the hospital, 15 criminal charges were filed against him. In 2016, 14 of those charges were dropped, leaving one for the unlawful possession of the gun found in the garage. The driver who was robbed ultimately testified that Davis was not the man who attempted to rob him. The police later alleged that the gun recovered from the garage had been used in a murder that took place earlier that morning, and Davis now faces charges related to the homicide in addition to the gun possession offense. Davis testified that he believed the police planted the gun on him after realizing they’d shot an innocent man.

Kelly Davis believed that when her husband’s case hit Mosby’s desk, she would recognize the injustice and errors made by the police, clear his charges, and bring justice to her family. But no charges were dropped, and in November 2016, Mosby’s office declined to charge the four officers who fired their guns at Mr. Davis, before they had given their statements about what happened. When they finally shared their accounts two months later, their stories differed.

Last April, Mosby clashed with more community members when she declined to reopen an investigation into the death of Tryone West, who died during an altercation with police officers in the course of a traffic stop. West’s sister, Tawanda Jones, leads protests to challenge and draw attention to the office’s decision every Wednesday.

Disturbed by the inaction of Mosby’s office and continued pursuit of her husband’s case, Davis has taken it upon herself to keep a close eye on Mosby’s office, and in particular, kept track of the mass exodus of staff members who’ve left since she became states attorney. Davis keeps a document tracking every departure; as of August 2017, the list includes the names of 66 staff members. (That accounts for a turnover of roughly one-third of the office’s staff.)

“You now have all inexperienced prosecutors who don’t know their cases, don’t know where they’re going,” says Davis. “They’re not getting the proper training, and the result of that is evident in our crime rates and the way these cases happen.”

Though Mosby indisputably had a rough start to her tenure that disappointed many, there may be reason to hope she can turn things around. In July, body camera footage was released that captured what appeared to be three Baltimore police officers planting drugs at a crime scene. The filmed evidence-planting — which the police officers alleged was part of the necessary “recreation of evidence” — was another strike against the badly damaged relationship between the police department and the communities they serve. Mosby announced that her office would review roughly 100 cases that involved the officers. As of late August, 43 of those criminal cases had been thrown out.

“It is incumbent upon us as prosecutors to be the ministers of justice and to do what’s right in the pursuit of justice, over convictions, while simultaneously prioritizing public safety,” Mosby said at a press conference.

Mosby’s office also joined the many local officials who have reemphasized their city’s commitment to shielding immigrants from deportation in the wake of Trump’s election. A memo to line prosecutors from Chief Deputy State’s Attorney Michael Schatzow in April encouraged the attorneys to “think twice before charging illegal immigrants with minor, non-violent crimes in response to stepped up immigration enforcement by the Trump administration.”

Mosby took a step further by signing onto a friend of the court brief on August 31 in support of a lawsuit brought by the city of Chicago against the Trump administration, challenging its attempts to force local government to aid federal agents in immigration enforcement by withholding grant money. It was another strong signal of her support for Baltimore’s immigrant community.

But for local Baltimore residents like Kelly Davis, Mosby’s disappointments still far outshine any progressive accomplishments.

“In the black community, which has this strained relationship with the police, you see a person that looks like you and says she’ll stand up for you,” said Davis. “But she is as much responsible if not more for the crime rate and the crisis of this city as the police.”

Thanks to Jake Sussman.

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Colorado death penalty case challenged after prosecutor bragged about his involvement

“I was your worst nightmare.”

Colorado death penalty case challenged after prosecutor bragged about his involvement

“I was your worst nightmare.”

“This is my resume,” Jack Roth, a former assistant attorney for the Colorado Attorney General’s Office, told a group of students from the University of Colorado last November. A brief pause, as dramatic music fills the room. “I was a cop while I was a lawyer, which means that I was your worst nightmare. I was a lawyer with a gun and a Taser.” So began Roth’s lecture on the state’s death penalty.

Video of Roth’s speech — made while he was still working for the state attorney general — surfaced early this summer. In it, he explains that prosecuting capital cases and going up against defense attorneys “seems like a game.” He also brags about seeking capital punishment for a man who fatally stabbed a corrections officer — even though the victim’s family is adamantly opposed to the death penalty. Now, defense attorneys for the defendant in question, Miguel Contreras-Perez, are using the footage to challenge the legality of pursuing the death penalty. According to the Colorado Independent, lawyers for Contreras-Perez filed two motions on July 31, arguing that Roth revealed details of a sealed case and did not have authority to pursue the harsh sentence in the first place.

By the time he spoke to the students, facts of the case were part of the public record. In 2012, Contreras-Perez was housed at the Arkansas Valley Correctional for kidnapping and raping a teenager. He was sentenced to a minimum of 35 years. While serving his time, he used a kitchen knife to kill correctional Sgt. Mary Ricard and then attempted to kill another. Roth not only rehashed this information to the college students in November, but went on to explain his reasoning for seeking the death penalty.

“What if I told you in my Perez case, Mary Ricard’s family does not want the death penalty? They are very, very religious and they believe that killing is only in God’s hands,” he said. “They don’t want the death penalty. But I’m still going forward with it. Why? Well, I can tell you my reason is that I’m looking out for every other corrections officer out there. He’s already serving 35 to life. If I don’t go death penalty on him, what’s that say to every other corrections officer out there?”

Defense lawyer David Lane told the Colorado Independent that the speech could impede Contreras-Perez’ right to a free trial. In addition to filing a motion critiquing Roth’s brazen remarks, Lane’s team filed a motion to throw out the death penalty option in the defendant’s case. Crowley County District Attorney Jim Bullock — not Roth — should be the only person deciding what punishment to pursue. “The attorney general has no authority to prosecute a case simultaneously with, or instead of, the district attorney,” the motion argues. It claims the attorney general’s office is involved in the case because the Colorado Department of Corrections gave the agency nearly $1 million to take it on.

The news organization reports that Roth left the attorney general’s office within a week of the court filings. A decision regarding potential punishments for Contreras-Perez’ has yet to be made.

The legal drama is unfolding as many Coloradans appear hesitant to execute people for their crimes. In 2015, two prominent cases in which defendants were eligible for the death penalty, including that of Aurora movie theater shooter James Holmes, concluded with life sentences instead. Today, the state has one of the smallest death row populations in the country, with three people — all of whom are black men from the 18th Judicial District — waiting to die. In May 2013, Gov. John Hickenlooper issued an executive order that granted one of the men, Nathan Dunlap, an indefinite reprieve.

“If the State of Colorado is going to undertake the responsibility of executing a human being, the system must operate flawlessly. Colorado’s system for capital punishment is not flawless,” the order stated. The governor pointed to the “inequitable” and “arbitrary nature” of death penalty sentencing and the fact that it doesn’t make communities safer. He emphasized those same ideas in a 2015 op-ed, adding that race and location have determined who gets to live and who gets to die at the hands of the state.

But the Contreras-Perez case shows how fiercely committed many elected prosecutors still are to sentencing people to death. State Attorney General Cynthia Coffman wants the option left on the table unless voters repeal it. Roth belonged to a special prosecution unit dedicated to helping local district attorneys prosecute cases, including “death penalty-eligible homicides,” and to fighting death penalty appeals. The current district attorney for the 18th Judicial District, George Brauchler, did not prosecute the three people sitting on death row there, but he is a staunch supporter of capital punishment and running for governor. If elected, he is sure to take death penalty fervor with him to the state capitol. He has said he will jump start Dunlap’s execution “Day 1.

Besides squaring up against local and federal prosecutors, opponents of the death penalty are facing an uphill battle. The state legislature has tried and failed to abolish it three times since 2009, including one attempt this year. With Republicans in control of the state senate, the punishment isn’t likely to be banned soon. As Colorado death penalty scholar Michael Radelet toldWestword earlier this year, “[t]here are some things it does real well; it allows politicians to create the false impression that they’re actually doing something about crime. It allows them to look tough.”

As the defense team for Contreras-Perez awaits a decision, it is clear that their defendant’s case doesn’t exist in a vacuum. Roth may have been dismissed from the case and attorney general’s office, but set against the backdrop of state politics, the prisoner’s fate could set the tone for future prosecution.

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