The short answer to this question is: No.
The right to a first offender pardon is established in the Louisiana Constitution of 1974, Article IV, Section 5(E), and states in relevant part:
a first offender convicted of a non-violent crime, or convicted of aggravated battery, second degree battery, aggravated assault, mingling harmful substances, aggravated criminal damage to property, purse snatching, extortion, or illegal use of weapons or dangerous instrumentalities never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.
Louisiana Constitution of Article IV, Section 5(E). Louisiana Revised Statutes 15:572 elaborates on this power:
B.(1) A first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence without a recommendation of the Board of Pardons and without action by the governor.
(2) No person convicted of a sex offense as defined in R.S. 15:541 or determined to be a sexually violent predator or a child predator under the provisions of R.S. 15:542.1 et seq. shall be exempt from the registration requirements of R.S. 15:542.1 et seq., as a result of a pardon under the provisions of this Subsection.
(3) Notwithstanding any provision of law to the contrary, no pardon shall be issued to a first offender unless that person has paid all of the court costs which were imposed in connection with the conviction of the crime for which the pardon is to be issued.
C. For the purposes of this Section, "first offender" means a person convicted within this state of a felony but never previously convicted of a felony within this state or convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would have been a felony, regardless of any previous convictions for any misdemeanors. Convictions in other jurisdictions which do not have counterparts in this state will be classified according to the laws of the jurisdiction of conviction.
D. On the day that an individual completes his sentence the Division of Probation and Parole of the Department of Corrections, after satisfying itself that (1) the individual is a first offender as defined herein and (2) the individual has completed his sentence shall issue a certificate recognizing and proclaiming that the petitioner is fully pardoned for the offense, and that he has all rights of citizenship and franchise, and shall transmit a copy of the certificate to the individual and to the clerk of court in and for the parish where the conviction occurred. This copy shall be filed in the record of the proceedings in which the conviction was obtained. However, once an automatic pardon is granted under the provisions of this Section, the individual who received such pardon shall not be entitled to receive another automatic pardon.
E. Notwithstanding any provision herein contained to the contrary, any person receiving a pardon under the provisions of Subparagraph (1) of Paragraph (E) of Section 5 of Article IV of the Louisiana Constitution of 1974 and this Section may be charged and punished as a second or multiple offender as provided in R.S. 15:529.1.
A first offender pardon does not remove the record from public access and it can still be used against a person in a subsequent prosecution.
The effect of an expungement is established in Louisiana Code of Criminal Procedure Article 973:
A. An expunged record of arrest or conviction shall be confidential and no longer considered to be a public record and shall not be made available to any person or other entity except for the following:
(1) To a member of a law enforcement or criminal justice agency or prosecutor who shall request that information in writing, certifying that the request is for the purpose of investigating, prosecuting, or enforcing criminal law, for the purpose of any other statutorily defined law enforcement or administrative duties, or for the purposes of the requirements of sex offender registration and notification pursuant to the provisions of R.S. 15:540 et seq.
(2) On order of a court of competent jurisdiction and after a contradictory hearing for good cause shown.
(3) To the person whose record has been expunged or his counsel.
(4) To a member of a law enforcement or criminal justice agency, prosecutor, or judge, who requests that information in writing, certifying that the request is for the purpose of defending a law enforcement, criminal justice agency, or prosecutor in a civil suit for damages resulting from wrongful arrest or other civil litigation and the expunged record is necessary to provide a proper defense.
B. Upon written request therefor and on a confidential basis, the information contained in an expunged record may be released to the following entities that shall maintain the confidentiality of such record: the Office of Financial Institutions, the Louisiana State Board of Medical Examiners, the Louisiana State Board of Nursing, the Louisiana State Board of Dentistry, the Louisiana State Board of Examiners of Psychologists, the Louisiana Board of Pharmacy, the Louisiana State Board of Social Work Examiners, the Emergency Medical Services Certification Commission, Louisiana Attorney Disciplinary Board, Office of Disciplinary Counsel, the Louisiana Supreme Court Committee on Bar Admissions, the Louisiana Department of Insurance, the Louisiana Licensed Professional Counselors Board of Examiners, the Louisiana State Board of Chiropractic Examiners, or any person or entity requesting a record of all criminal arrests and convictions pursuant to R.S. 15:587.1, or as otherwise provided by law.
C. Except as to those persons and other entities set forth in Paragraph A of this Article, no person whose record of arrest or conviction has been expunged shall be required to disclose to any person that he was arrested or convicted of the subject offense, or that the record of the arrest or conviction has been expunged.
D. Any person who fails to maintain the confidentiality of records as required by the provisions of this Article shall be subject to contempt proceedings.
E. Nothing in this Article shall be construed to limit or impair in any way the subsequent use of any expunged record of any arrests or convictions by a law enforcement agency, criminal justice agency, or prosecutor including its use as a predicate offense, for the purposes of the Habitual Offender Law, or as otherwise authorized by law.
F. Nothing in this Article shall be construed to limit or impair the authority of a law enforcement official to use an expunged record of any arrests or convictions in conducting an investigation to ascertain or confirm the qualifications of any person for any privilege or license as required or authorized by law.
G. Nothing in this Article shall be construed to limit or impair in any way the subsequent use of any expunged record of any arrests or convictions by a “news-gathering organization”. For the purposes of this Title, “news-gathering organization” means all of the following:
(1) A newspaper, or news publication, printed or electronic, of current news and intelligence of varied, broad, and general public interest, having been published for a minimum of one year and that can provide documentation of membership in a statewide or national press association, as represented by an employee thereof who can provide documentation of his employment with the newspaper, wire service, or news publication.
(2) A radio broadcast station, television broadcast station, cable television operator, or wire service as represented by an employee thereof who can provide documentation of his employment.
H. Nothing in this Article shall be construed to relieve a person who is required to register and provide notice as a child predator or sex offender of any obligations and responsibilities provided in R.S. 15:541 et seq.
La. CCrP. Art. 973.
Under current ATF guidelines, an expungement will serve to restore an individual’s right to possess a firearm under federal law. An expungement, like a first offender pardon, does not prevent the use of the expunged conviction from use against a person in a subsequent prosecution.
If you or someone you know has questions about eligibility for or obtaining an expungement and would like to set up a consult, give us a call at (318) 459-9111.
One of the most common questions we are asked is: how does a criminal conviction impact my right to own or possess a firearm? The answer is: it’s complicated.
What you are dealing with when trying to determine whether a certain criminal conviction will impact your right to possess a firearm is the intersection of both state and federal law.
Under Louisiana law, a person is prohibited from possessing a firearm for 10 years from the completion of any sentence as the result of a felony conviction of one of the following offenses or an attempt to commit one of the following offenses:
a felony crime of violence (as defined in La. R.S. 14:2),
simple burglary,
burglary of a pharmacy,
burglary of an inhabited dwelling,
unauthorized entry of an inhabited dwelling,
felony illegal use of a dangerous weapon,
manufacture or possession of a delayed action incendiary device,
manufacture or possession of a bomb,
possession of a firearm while in possession of or during the sale or distribution of controlled dangerous substances,
a felony violation of the controlled dangerous substances laws, or
a sex offense (as defined in La. R.S. 15:541).
A person is further prohibited from possessing a firearm under Louisiana law for certain offenses that may be misdemeanors for 10 years from the completion of any sentence:
domestic abuse battery,
a second or subsequent conviction of battery of a dating partner, or
battery of dating partner that involved strangulation or burning.
Under Louisiana law, the passage of 10 years from the completion of sentence restores an individual’s right to possess a firearm; however, federal law has no such cleansing period. Under federal law, an individual is prohibited from possessing a firearm for any conviction for:
a crime punishable by imprisonment for more than one year (Note: this pretty much includes all felonies in Louisiana, not just the ones enumerated above) or
a misdemeanor crime of domestic violence.
The ATF allows for the restoration of a person’s right to possess a firearm under federal law if:
…as long as the pardon, expungement or restoration does not expressly provide that the person may not ship, transport, possess or receive firearms. A restoration of civil rights, however, is only effective to remove the federal firearms disability if the law of the jurisdiction provides for the loss of civil rights for a conviction of such a misdemeanor.
Bureau of Alcohol, Tobacco, Firearms, and Explosives Website.
Under current ATF regulations, a person eligible for expungement who actually expunges an arrest (and conviction) from his record will be able to possess a firearm because Louisiana law does not specifically exclude the right to possess a firearm from its expungement law.
If you or someone you know would like to set up a consult to discuss an expungement to restore your right to. possess a firearm, give us a call at (318) 459-9111.
So I usually write one of these about once every six months or so to update on any changes to the expungement law that have occurred in the intervening time. I can’t remember the last time I wrote one, so it seems like a reasonable enough time has passed to write another.
Expungements, in Louisiana, are a method by which a person arrested for a crime (felony or misdemeanor) under certain circumstances may remove the record of that arrest from public access on his criminal record (rap sheet). Some of that language needs clarification as it applies to expungements, so here’s some terminology for you:
Rap Sheet - this is the document maintained by the Louisiana State Police, Bureau of Criminal Identification and Information (LSP) which compiles all records of arrests throughout the State of Louisiana as well as the final dispositions of those matters.
Disposition - how the case finally resolved, whether that be a rejection by the prosecutor’s office, dismissal, conviction, guilty plea, etc… If the case resulted in a conviction, the rap sheet will show the charge the defendant was convicted of as well as the sentence.
Arrest record - a list of the crime for which the individual was arrested (i.e. booked into jail or issued a summons for), the date of the arrest, arresting agency, and final disposition.
In Louisiana, an expungement does not erase one’s criminal record. It does not ‘make it like it never happened.’ In Louisiana, an expungement merely orders LSP to remove that record from access by the general public. This means that the record will still exist and be accessible to certain individuals, groups, or organizations, but not to the general public. Some examples of groups who can still access the record are: law enforcement and certain state licensing agencies including the Nursing Board, Medical Board, Louisiana State Supreme Court (for purposes of bar admissions), and Insurance Board, to name a few.
Under some circumstances, a person arrested for an offense can apply for an expungement if his arrest did not result in conviction, or if he was arrested for a misdemeanor or a felony.
Expungement eligible…If not convicted:
if the time limits for prosecution have passed.
if the district attorney declined to prosecute (including if the person participated in a pre-trial diversion program unless that participation in pre-trial diversion was for a charge of Driving While Intoxicated, in which case the person will not be eligible for expungement until 5 years from the date of his arrest have passed).
if the person was found to be factually innocent and entitled to compensation.
…if convicted of a misdemeanor:
if the conviction was set aside pursuant to Article 894.
if 5 years have passed from completion of the sentence and the person has not been convicted of any felonies in the intervening 5 years nor has any pending felonies.
A person convicted of a misdemeanor that arose from a Sex Offense (as defined in La. R.S. 15:541), or domestic abuse battery, or stalking is not eligible for expungement.
…if convicted of a felony:
if the conviction is set aside pursuant to Article 893(E).
if 10 years have passed from completion of the sentence and the person has not been convicted of any criminal offense in the intervening 10 years nor has any pending criminal charges.
if the person is eligible for a first offender pardon pursuant to Article IV, §5(E)(1) of the Louisiana Constitution unless the conviction was for a crime of violence (as defined in La.R.S. 14:2) or a sex offense (as defined in La. R.S. 15:541).
Certain offenses are not eligible for expungement:
a felony crime of violence (as defined in La. R.S. 14:2)
except aggravated battery, second degree battery, aggravated criminal property damage, simple robbery, purse snatching, or illegal use of a weapon only after a contradictory hearing on the motion for expungement is held.
a Sex Offense (as defined in La.R.S. 15:541)
certain controlled dangerous substances offenses
except simple possession, possession with intent to distribute, offenses set aside pursuant to Article 893(E), or offenses that carry a penalty of less than 5 years imprisonment)
and Domestic Abuse Battery.
A person arrested for a felony but convicted of a misdemeanor may also be eligible for an interim expungement of the felony arrest under certain circumstances.
If you or someone you know is curious about their eligibility for an expungement, give us a call to set up a consult at (318) 459-9111.
For those of you located in Louisiana, you are certainly aware that there is an election coming up on March 26th. For those in Caddo or Bossier Parishes, this election will directly impact our court system. There are two open judicial seats on the ballot on March 26: Judge on the Second Circuit Court of Appeal and Judge on the 26th Judicial District Court.
The candidate elected to the 26th will preside over criminal as well as civil cases in Bossier and Webster Parishes and the candidate elected to the Second Circuit will hear appeals of criminal and civil cases throughout the Second Circuit (see the maps below).
In Louisiana, District Court judges are elected for six (6) year terms. Appellate court judges are elected for terms of ten (10) years. The candidates for the Court of Appeal in this election are Judge Erin Leigh Waddell Garrett and Judge Craig Marcotte. The candidates for the 26th Judicial District Court are Allie Aiello Stahl and Doug Stinson.
In Louisiana, the requirements to be eligible to vote are that you: (1) are a United States citizen, (2) are 18 years old (but you can register at 17), (3) are not in jail or under an order of supervision (i.e. in jail or on probation or parole)*, (4) are not interdicted, and (5) live in the state and parish in which you are registered to vote.
*This provision means that even if you are a convicted felon, once you have served your sentence, you are eligible to vote and should confirm that your registration is valid. (You can do that here.)
Early voting in this election begins on March 12 and runs through March 19 (except Sunday, March 13) from 8:30 a.m. - 6 p.m. and Election Day voting will take place on March 26, from 7 a.m. to 8 p.m.
Sarah and I opened our office on January 1, 2017, and I don’t think we’ve re-introduced ourselves since then. So I’m taking this opportunity to tell our readers a little bit about who we are.
Katherine Gilmer
“I consider myself an outspoken advocate for my clients and their best interests. I want to help people who are suffering.”
Katherine graduated from the University of Tampa with a degree in criminology. She went to law school knowing that she wanted to practice criminal law after graduation. Katherine graduated from the Paul M. Hebert Law Center at Louisiana State University and was admitted to the practice of law in Louisiana in 2008.
Katherine began her legal career at the Louisiana Second Circuit Court of Appeal in Central Staff where her responsibilities included reviewing criminal appeals filed with the court and drafting recommendations and memoranda to the Court to assist with its rulings.
She began honing her skills at criminal litigation in 2009 when she joined the Shreveport City Attorney’s Office as an assistant city prosecutor. She prosecuted cases ranging from minor traffic offenses to first and second offense domestic abuse battery and driving while intoxicated offenses.
After four years, she left the city attorney’s office to enter private practice with a criminal defense form in Shreveport, where she met her law partner, Sarah Giglio. In 2017, Sarah and Katherine left that practice to open their own.
Sarah Giglio
“We want to stand as a shield between our clients and the legal system. Our desire is to identify and solve any underlying issues that caused them to come into contact with it in the first place. Clients know they can trust us.”
Graduating magna cum laude, from Texas A&M University, Sarah chose law because she wanted to make a positive impact in people’s lives. Earning her Juris Doctor, cum laude, from Southern Methodist University’s Dedman School of Law, Sarah’s dedication to her clients is the driving force behind her practice. A talented legal writer, Sarah served as a Staff Editor and President of Dedman’s International Law Review. As a student member of the Association for Public Interest Law, Sarah earned a stipend to do public interest work after her first year of law school. The following year, as Vice-President of that organization, she took a leading role in the organization’s fundraising efforts to provide future stipends to law students seeking public service internships.
Sarah’s litigation experience began while still in law school with an active role in the clinics offered at SMU, beginning as a student in the Child Advocacy Clinic and later serving as Chief of the clinic. After clerking at a firm specializing in civil litigation and an internship with the Dallas District Attorney’s Office, Sarah found herself drawn to practice of criminal law. Sarah began her career in criminal defense as an associate at Rosenthal & Wadas in McKinney, Texas, where she practiced until she moved to Shreveport. Once in Shreveport, she practiced at Elton Richey & Associates before opening Gilmer & Giglio.
Sarah is licensed to practice law in Louisiana and Texas, and holds memberships in the National College for DUI Defense, the Louisiana Association for Criminal Defense Lawyers, the National Association of Criminal Defense Lawyers, the Shreveport Bar Association where she has served as President of the Women's Section, the Booth-Politz Inn of Court, and the Junior League of Shreveport-Bossier, for which she is currently serving as President. She was selected as a member of the 2016 Young Professionals Initiative 40 Under 40 class.
In honor of the 230th anniversary of the ratification of the Bill of Rights and our final week: The Tenth Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Similarly to the Ninth Amendment, the Tenth Amendment clarifies that any powers not expressly delegated to the United States government are to be exercised by the individual states or the people of the United States.
In honor of the 230th anniversary of the ratification of the Bill of Rights and week 9: the Ninth Amendment.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The second-to-last amendment in the Bill of Rights explicitly establishes that, even if a right is not enumerated in the Constitution, that fact cannot be used to deny those rights to the people.
In celebration of the man who saw a better future for us all:
In honor of the 230th anniversary of the ratification of the Bill of Rights and week 8, another criminal defense attorney favorite: the Eighth Amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Eighth Amendment’s short and sweet language is some of the most complicated and has spawned the most litigation in the Supreme Court. The questions of what is excessive, cruel, or unusual have spawned a great deal of litigation and the Court’s decisions on these matters have evolved over time as our society has evolved and changed. Things that were one thought perfectly fine are now considered cruel and unconscionable. This area of the law will continue to change as our society changes what we think constitutes cruelty.
Further reading:
Kahler v. Kansas, in which the Court answered the question: “May a state abolish the insanity defense without violating the Eighth and Fourteenth Amendments?” Answer: Yes.
Madison v. Alabama, in which the Court addressed the questions: “(1) Does the Eighth Amendment and the Court’s jurisprudence prohibit a state from executing a prisoner whose mental disability leaves him with no memory of the commission of the capital offense? and (2) Does the Eighth Amendment prohibition of cruel and unusual punishment preclude a state from executing a prisoner who suffers from severe cognitive dysfunction such that he cannot remember the crime for which he was convicted or understand the circumstances of his scheduled execution?” The Court found that: “The Eighth Amendment does not prohibit a state from executing a prisoner who cannot remember committing his crime, but it does prohibit executing a prisoner who cannot rationally understand the reasons for his execution, whether that inability is due to psychosis or dementia.”
Timbs v. Indiana, in which the Court addressed the question: “Has the Eighth Amendment’s excessive fines clause been incorporated against the states under the Fourteenth Amendment?” Answer: Yes.
Miller v. Alabama, in which the Court answered the question: “Does the imposition of a life-without-parole sentence on a fourteen-year-old child violate the Eighth and Fourteenth Amendments' prohibition against cruel and unusual punishment?” Answer: Yes.
In honor of the 230th anniversary of the ratification of the Bill of Rights and week 7, the Seventh Amendment:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
This amendment preserves the right to a trial by a jury in civil cases and prohibits judges from overturning the determinations of a jury except as otherwise permitted under the common law.
Gilmer & Giglio wish you a safe, happy, and healthy 2022!
Whether you are bidding a fond farewell or goodbye and good riddance to 2021, we hope you stay happy and healthy this evening and into the new year!
Stay safe and if you need us, give us a call at (318) 459-9111!
In honor of the 230th anniversary of the ratification of the Bill of Rights and week 6, one of the favorites of criminal defense lawyers: the Sixth Amendment!
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The Sixth Amendment contains a lot of the rights which form the basis of our criminal justice system in the United States. This amendment requires that trials be both “speedy and public.” This, unfortunately, does not mean that the trial has to happen on the defendant’s preferred schedule, but it does mean that the State cannot simply hold an individual in custody indefinitely without resolution of his charges. It also requires that his trial be open to the public so that observers can enter and view the proceedings and so that the defendant knows that his trial will be subject to the oversight of his community, should they choose to avail themselves of that opportunity.
The defendant must be advised of the nature of the charges against him. This means he cannot be tried for a charge he hasn’t been advised he has been accused of. He has the right to confront the witnesses against him, which means they are required to come to court and testify openly and he has the right, on his own or through his counsel, to ask them questions relevant to their testimony. He can subpoena his own witnesses to court to testify on his behalf and cannot be prohibited from doing so provided their testimony is relevant. Finally, he has a right to an attorney to represent him and defend his case.
Further reading:
Kaley v. United States, in which the Court answered the question: “Do the Fifth and Sixth Amendments require a district court to allow a criminal defendant to challenge the evidence behind her charges in a pretrial hearing when a protective order freezes the assets necessary for the defendant to hire her attorney?” Answer: No. The Defendant does not have a right to use illegally obtained assets to hire an attorney.
Padilla v. Kentucky, in which the Court answered the questions: “(1) Is the mandatory deportation that results from a guilty plea to trafficking in marijuana a "collateral consequence" that relieves counsel of an affirmative duty to advise his client per the guarantees of the Sixth Amendment? (2) Assuming deportation is a "collateral consequence", can counsel's gross misadvice about deportation constitute a ground for setting aside a guilty plea that is induced by that advice?” Answers: (1) No, and (2) not reached because of the answer to (1).
Montejo v. Louisiana, in which the Court addressed the question: “After the appointment of an attorney, does a defendant need to take additional steps to accept the appointment in order to secure the protections afforded by the Sixth Amendment?” Answer: Not necessarily.
Hemphill v. New York, in which the Court will address the question: “When, if ever, does a criminal defendant who “opens the door” to evidence that would otherwise be barred by the rules of evidence also forfeit his right to exclude evidence otherwise barred by the Confrontation Clause?”
Hardy v. Cross, in which the Court answered the question: “Did the steps taken to attempt to locate [the witness] satisfy the Confrontation Clause's good faith effort requirement?” Answer: Yes.
Bullcoming v. New Mexico, in which the Court addressed the question: “Can a blood-alcohol test admitted without the actual testimony of the person who prepared the results violate a criminal defendant's Sixth Amendment rights under the Confrontation Clause?” Answer: Yes.
Melendez-Diaz v. Massachusetts, in which the Court addressed the question: “Is a state forensic analyst's laboratory report prepared for use in a criminal prosecution "testimonial" evidence subject to the demands of the Sixth Amendment's Confrontation Clause as set forth in Crawford v. Washington?” Yes.