Effective June 16, 2022, the Louisiana Legislature passed and Governor John Bel Edwards signed into law Act 494, which regulates the publication of booking photos of arrested individuals. Act 494 enacts Louisiana Code of Criminal Procedure Article 234.

Article 234 prohibits Louisiana law enforcement agencies from releasing booking photographs of individuals to a person requesting a copy unless it is subject to one of the following exceptions:

“(a) The individual is a fugitive, and a law enforcement officer or agency determines that releasing or disseminating the booking photograph will assist in apprehending the individual.

(b) A law enforcement officer or agency determines that the individual is an imminent threat to an individual or to public safety and determines that releasing or disseminating the booking photograph will assist in reducing or eliminating the threat.

(c) A judge of a court of competent jurisdiction orders the release or dissemination of the booking photograph based on a finding that the release or dissemination is in furtherance of a legitimate interest.

(d) The individual is convicted of or pleads guilty or nolo contendere to a crime, lesser crime, or lesser included offense as defined in Article 558 in response to the same crime for which he was arrested or if there is criminal litigation related to the same crime that is pending or reasonably anticipated.

(e) The individual is charged with a crime of violence as defined in R.S. 14:2(B), except stalking, or charged with any of the following offenseS:

(i) Sex offenses as defined in R.S. 15:541.

(ii) Human trafficking offenses as defined in R.S. 14:46.2 and 46.3.

(ii) Offenses affecting the public health and morals of minors, R.S. 14:91 et seq.

(iv) Offenses affecting the health and safety of persons with infirmities, R.S. 14:93.3 et seq.

(v) Video voyeurism.

(vi) Cruelty to animals.

(vii) Dogfighting.”

La CCrP Art. 234(C)(1). If a law enforcement agency publishes a booking photo pursuant to one of these exceptions and prior to a conviction, it must contain the disclaimer: “all persons are presumed innocent until proven guilty.” La CCrP Art 234(C)(3). This statute further requires “remove-for-pay” websites to remove booking photographs without payment under certain circumstances and establishes that failure to do so will subject the website to prosecution for extortion pursuant to Louisiana Revised States Title 14, §66.

If you or someone you know has been arrested and is seeking criminal representation, call our office at (318) 459-9111 to schedule a consultation.

Terence Tekoh worked as a patient transporter for a hospital in Los Angeles. A patient accused him of sexual assault. The Los Angeles Police Department, upon receiving the report, sent Deputy Carlos Vega to the hospital to interview Tekoh. Deputy Vega took a statement from Tekoh without advising Tekoh of his rights pursuant to Miranda v. Arizona.

Tekoh was acquitted after trial and filed a lawsuit against Vega for violating his Fifth Amendment right against self-incrimination. A jury found in favor of Vega in the civil trial. Tekoh appealed and the Ninth Circuit vacated the decision and remanded for a new trial.

The US Supreme Court considered the question:

Is the use of an un-Mirandized statement against a defendant in a criminal case sufficient support a 42 U.S.C. § 1983 action?

Source: Oyez.org.

The Supreme Court held on June 22, 2022, that the use of an un-Mirandized statement against a defendant in a criminal case is not sufficient to support a cause of action under 42 U.S.C. §1983. A defendant may not sue an officer in civil court for failing to advise him of his Miranda rights; however, the statement is still subject to suppression in the criminal proceeding against him.

Gilmer & Giglio are in trial this week.

When you contact our office, please leave us a message and we will return your call as soon as we can.

Thank you for your patience!

Here at Gilmer & Giglio, we’d like to wish everyone a very happy first day of summer!

Gilmer & Giglio are in trial this week.

When you contact our office, please leave us a message and we will return your call as soon as we can.

Thank you for your patience!

Happy father’s day to all the father’s we know and love!

Gilmer & Giglio are in trial this week.

When you contact our office, please leave us a message and we will return your call as soon as we can.

Thank you for your patience!

Merle Denezpi, a member of the Navajo Tribe, pled guilty to an assault charge in the Court of Indian Affairs. Subsequently, he was indicted in federal court for charges arising from the same set of facts. He was convicted and sentenced to 30 years in prison.

He challenged his conviction in federal court alleging that the Double Jeopardy Clause of the United States Constitution prohibited his subsequent conviction in federal court after he was convicted in the Court of Indian Affairs.

The question pending before the Supreme Court this term is:

Does a prosecution in the Court of Indian Offenses trigger the Constitution’s Double Jeopardy Clause?

Source: Oyez.org

We would like to take this day to thank those who gave, as Abraham Lincoln once said, “the last full measure of devotion” to our country.

In 1997, William Wooden broke into a storage facility and stole objects from 10 different storage units. He was charged with and subsequently pled guilty to 10 counts of burglary. In 2014, officers found him in possession of a rifle and charged him with being a felon in possession of a firearm and was indicted by a federal court. After trial, and during his sentencing hearing, Wooden was determined to be an Armed Career Criminal in violation of 18 U.S.C. § 922(g)(1) and 924(e).

The Supreme Court addressed the following question:

Are offenses committed as part of a single criminal spree but sequentially in time “committed on occasions different from one another” for purposes of a sentencing enhancement under the Armed Career Criminal Act?

In a unanimous decision drafted by Justice Kagan, the Court found that offenses committed as part of a single criminal episode did not occur on different “occasions” and thus count as only one offense for purposes of the Armed Career Criminal Act.

Source: Oyez.org.

Larry Thompson was arrested for resisting an officer and obstructing governmental administration after he refused to allow officers entry into his home when they told him they did not have a warrant. He spent two days in jail and after three months his case was dismissed. The initial complaint was made by his sister-in-law who believed diaper rash on her nephew was a sign of abuse. After EMTs arrived on scene and found nothing wrong, four law enforcement officers arrived and Mr. Thompson, who did not know about his sister-in-law’s call, denied them entry, resulting in his arrest.

After his case was dismissed, Mr. Thompson filed a lawsuit against the officers for malicious prosecution. The trial court dismissed the case because it found that a dismissal was not a proceeding that “formally ended in a manner not inconsistent with his innocence,” or “ended in a manner that affirmatively indicates his innocence”.

In a 6-3 decision authored by Justice Kavanaugh, the Supreme Court held that an acquittal was not required to sustain an §1983 action.

Source: Oyez.org

We wish a happy mother’s day to all the mother’s in our lives, especially our own!

In April 2006, two men got into a fight with several other people in the Bronx. Shortly thereafter, someone opened fire with a 9 millimeter handgun and a child in a passing car was killed. Nicholas Morris was identified by witnesses as the shooter and pursuant to a warrant, officers found a 9 millimeter cartridge and ammunition for a .357 revolver in his home. They did not find the weapon. Morris’ trial ended in a mistrial and rather than re-try him, Morris pled to possessing a firearm at the scene of the shooting. Because the prosecution did not have sufficient evidence to prove possession of a firearm at the scene, Morris testified during the plea that he possessed a .357 revolver at the scene.

In 2013, Darrell Hemphill was charged with the murder. At trial, Hemphill presented evidence that a 9 millimeter cartridge was located at Morris’ home shortly after the shooting. In response, the State presented the testimony of Morris at his plea that he had possessed a .357 revolver at the scene.

Hemphill appealed and the question presented to the United States Supreme Court was:

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?

The Supreme Court, in an 8-1 decision authored by Justice Sonia Sotomayor, held:

The Confrontation Clause of the U.S. Constitution guarantees criminal defendants the right to confront witnesses against them, and the Court has recognized no open-ended exceptions to this requirement—only those exceptions established at the time of the founding. In People v. Reid, New York’s highest court held that a criminal defendant “opens the door” to evidence that would otherwise be inadmissible under the Confrontation Clause if the evidence was “reasonably necessary” to correct a misleading impression made by the defense’s argument. Contrary to the State’s contention, the Reid rule is not merely procedural, but a substantive principle of evidence that dictates what material is relevant and admissible. Such an exception is antithetical to the Confrontation Clause.

Source: Oyez.com.

In Lousiana, some cases are tried by a judge and some are tried by a jury. The dividing line between the two are that cases in which the defendant may be sentenced to imprisonment at hard labor must be tried by a jury, unless the defendant waives that right and chooses to be tried by a judge. This is solely the defendant’s right to waive. The State cannot force a defendant to give up his right to trial by jury.

In Louisiana, jury trials are also broken down into two types: 6-person juries and 12-person juries.

A defendant is entitled to a 12-person jury trial when the charge for which he is being prosecuted is either capital (meaning he can be executed or imprisoned at hard labor for life) or if the sentence requires that he be sentenced to hard labor. If the potential punishment only carries the possibility of imprisonment at hard labor, then the defendant is only entitled to a trial by 6 jurors.

See Louisiana Code of Criminal Procedure Article 782.

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.

La. R.S. 15:542.

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.