CRIMINAL LEGAL FLOWCHART

Click on the buttons below to visit sections of the guide or websites that may be helpful for you during these stages

In the case of homicide, the family is typically notified by the CORONER or POLICE (NOPD)

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If you are eligible, CRIME VICTIM REPARATIONS funds can cover out of pocket expenses related to the crime (medical/mental health, lost wages, funeral expenses, etc.)

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You can TRACK case progress or an incarcerated person’s status online by clicking on the buttons above

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Magistrate: initial felony charges and bail

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Case is REFUSED (process ends)

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Case is REFERRED to another jurisdiction (federal court is one example)

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RELOCATION and other assistance may also be available

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District Attorney files BILL OF INFORMATION

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Grand Jury BILL OF INDICTMENT (required for all CAPITAL cases, or cases that may result in a life sentence or the death penalty)

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ARRAIGNMENT (Plea of ‘guilty’ or ‘not guilty’, occurs approximately 48 hours after Bill of Information or Indictment)

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PRELIMINARY HEARING (only for cases with Bill of Information)

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During this phase DISCOVERY occurs, which decides what is allowed at trial

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This can happen at any time, sentencing by the judge

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Jury or Bench Trial

Opening arguments

Prosecution & defense present evidence

Closing arguments

Jury instructions & deliberations

If there is not a guilty verdict, defendant is released

OR IF THERE IS A….

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Victim impact statement(s) are heard

A sentence is imposed by the judge

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There will be a PENALTY PHASE

Aggravating and/or mitigating factors are evaluated

Victim impact statement(s) are heard

Verdict (and sentencing decision) is reached by a jury

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If a guilty verdict is reached, APPEALS are to be expected and can sometimes result in a new trial

PROTECTIONS FOR THE DEFENDANT

American law requires that all persons accused of a crime must be presumed innocent until proven guilty. It requires that the legal system justify any limits placed on an individual’s freedom, even if they are suspected of committing a crime. Therefore, there are laws and rules of procedure to protect citizens from being unreasonably detained or confined.

If arrested, the U.S. Constitution insists that three things be done to protect the citizen:

• The citizen is told why they are being detained

• Must not be unreasonably detained

• Must have the right to an attorney to defend them.

If a suspect is either detained or released on bail, the court must act within specific time frames, based on the seriousness of the matter, to ensure that a defendant is not held indefinitely. There are also time limits to protect a citizen’s right to a speedy trial. The State is required to prove that there was “probable cause” (a strong likelihood) to arrest someone. This is accomplished by a hearing in front of a Magistrate who decides if the accused likely committed the crime.

MAGISTRATE AND COMMISSIONERS

The Magistrate’s Court makes decisions on minor offenses, and holds initial hearings for major offenses. This court is made up of an elected Magistrate and four Commissioners, who hold court seven days a week. They will be the first administrator of the law that a suspect will meet. All felony cases are processed through the Criminal Court.

• Both the Magistrate’s Court and Criminal Court are located in the same building.

ARREST OF SUSPECT

A suspect may be arrested with, or without, a warrant.

Arrest without a warrant: If a suspect is arrested without a warrant, then within 48 hours the Magistrate must find that the officer had “probable cause” or a valid reason for the arrest.

- Or -

Arrest with a warrant: If evidence leads the NOPD to identify a suspect, they submit an affidavit (a written document and sworn statement) detailing the relevant facts to a Magistrate for an arrest warrant. If the Magistrate decides that the evidence meets the probable cause standard, s/he will sign a warrant to allow the police to arrest and jail the person now charged with a crime.

FIRST APPEARANCE / PROBABLE CAUSE HEARING

For both situations (arrest with or without a warrant), the Magistrate must be satisfied that there is evidence for the suspect’s arrest, and will use a probability standard: in other words, that it is most likely the suspect was involved in the crime – called probable cause.

• Note that the Magistrate is not trying the case and does not determine guilt or innocence.

DECISIONS BY MAGISTRATE IF PROBABLE CAUSE FOUND

If the Magistrate is satisfied there is probable cause, s/he will address the three matters required by the Constitution:

1. Advise the suspect of what s/he is charged with, for example, manslaughter, negligent homicide, or second-degree homicide. There may be multiple charges the suspect is accused of committing.

• Note also that a suspect may not necessarily be present at the hearing, if they are physically or mentally unable to be there.

2. Determine if there is reason to hold that person in jail without bail, or decide if the suspect is eligible for bail. The ADA may argue that there is a reason to hold the suspect without bail, or that a certain amount of bail is necessary to restrict the suspect.

3. Appoint a Public Defender (a defense attorney) if the suspect cannot afford one, as everyone has the right to be represented in court. A suspect can choose to hire a private defense attorney.

ADA and Public Defenders are sometimes present at the Magistrate’s Court, as part of what is called pre-trial services, in order to represent and preserve the interests of the State and the defendant, respectively.

FELONY CLASS DEFINITIONS

Every crime is put into certain groupings, called classes or degrees. These range from the unintentional (often resulting from carelessness or an unfortunate accident), to a premeditated killing that is planned out.

Major felony cases occur when severe bodily harm has been inflicted, and are put in broad categories:

• Homicides

• Sexual assault cases (rape, non-consensual touching, groping, and child sexual abuse)

• Gun crimes (armed robbery, shootings, involving use of intimidation)

• Significant property crimes, such as arson.

Any case can be a mix of several felony classes, with some aspects involving the State and others involving federal agencies. If there are several levels of felonies in the charges, the bail is set according to the most serious of the charges.

First-degree Felonies:

Such cases may involve murder, aggravated rape, or robbery. Convictions in such cases can involve life in prison or the death penalty (called “capital” cases). The DA makes this decision.

For homicide cases, the DA office has 120 days if the suspect is in custody, and 150 days if they are out on bail, to make a charge. The right to bail for a 1st-degree felony is typically denied.

• 1st-degree murder – This refers to an intentional killing with aggravating circumstances (things that increase the seriousness of the crime) – such as murder of a police officer or fireman in the line of duty, an elderly person over the age of 65, a child under the age of 12, more than one person being killed, or while committing another felony (such as arson, kidnapping, or rape), or paying someone to kill a witness or family member.

• 1st-degree rape – Where the victim resists but is overcome by force, is threatened by great and immediate bodily harm, the person committing the crime is armed, victim is under 13 or over 65, two or more persons participate, or the victim suffers from a physical or mental infirmity preventing resistance.

• 1st-degree robbery – This involves the taking of anything of value belonging to another by use or force or intimidation, where the person committing the crime leads the victim to believe s/he is armed with a dangerous weapon, such as with armed robbery.

Second-degree Felonies:

These can include aggravated assault, child molestation, forcible rape, sexual battery, and hate crimes.

• In such cases, the DA has up to 60 days to make a charge if the suspect is continued in custody, and 150 days if they are out on bail (but this is usually done sooner).

• 2nd-degree murder: This can either be an intentional killing without aggravating circumstances, or the unintentional killing of someone while committing a felony (such as armed robbery). For example, if someone is robbing a bank and fires a warning shot, and the shot accidentally kills someone, this is second- degree murder.

• 2nd-degree rape: Where the victim is prevented from resisting by force or threats of physical violence, is incapable of resisting or understanding the nature of the act by reason of stupor, or abnormal condition, produced by a substance administered by the person committing the crime without knowledge of the victim.

Third-degree Felonies:

This includes assault and on of pornography, driving under the influence, bribery, arson, fraud, promoting the prostitution of a minor, elder abuse, and various drug possession offenses.

Manslaughter:

Crimes of passion where a person feels provoked to commit crime. Sentencing ranges from 0 to 40 years, and takes into account the defendant’s criminal history.

BAIL AND BONDS

Bail allows for the temporary release of a suspect from jail if they are able to post the amount of money required by the court. Usually, a suspect will apply for a bond from a bail bondsman by pledging a percentage of the bail amount in some form of money, like property, cash or valuables.

The suspect is released if they can post cash or make bond (provide a percentage of the bail amount, which is set at 12%). A bail bondsman will post the full amount of the bail to the court, which is then called a bond, and this secures the release of the suspect. The cash or the bond acts as a guarantee that the suspect will appear back in court.

• The bail will be forfeited (or given up) if the suspect does not appear for trial, and the court may issue a warrant for his/her arrest, and s/he may be brought up on further criminal charges for that failure to appear. If a suspect violates any of the terms of his/her conditions, s/he can be held in jail until trial.

In setting bail, the Magistrate will consider:

• The severity of the crime

• Whether the suspect poses a danger to others

• Whether or not the suspect is likely to flee if released from custody or bail obligations – and may then set an amount of money (bail) to prevent that individual from leaving the community

• A suspect’s prior record is taken into consideration

• In very serious cases the judge may deny bail, or not allow the

  accused to receive calls, or may set bail at a level that assures

  the accused will remain in custody until the case is disposed

  (completed).

  • No bail is allowed for first-degree murder cases.

Any case can be a mix of several felony classes, and may even be mixed with some state or federal violations (for example, with drug cases). If there are several levels of felonies in the charges,the bail is set according to the most serious of the charges.

Once bail has been set, a suspect may request a hearing for bail reduction at any time, and this can be made before any judge or commissioner if the case has not been allotted to a trial judge. (After arraignment, the presiding judge must hear it.)

The ADA or DA Victim Witness Coordinator is supposed to notify the victim’s family that a hearing for release from custody or bail reduction is being requested, particularly if the ADA thinks there is a likelihood that either might be granted by the judge.

• Since they do so as a matter of courtesy to the victim’s family and are not required by law to do so, ask your ADA or DA Victim Witness Coordinator to make sure you are told of any such requests.

Court Watch NOLA has written a report on the Magistrate’s office, and recommends bail reform involving low-risk versus high-risk individuals accused of crimes, stating: “Judges should rely on the totality of a defendant’s individualized circumstances, as captured by PTS (pre-trial services) reports, rather than placing undue emphasis on the defendant’s pending charges in making pre-trial release decisions,” and that the judges and commissioners “should not have a blanket policy refusing to set bonds below a certain amount for all defendants regardless of individual circumstances,” and their ability to pay.

• Court Watch NOLA has successfully pushed to include crime victim advocates in both the bail bond reform conversation and coalition. [Read under Reports on www.courtwatchnola.org]

The co-defendant in my case was released when a judge from another section reduced her bail. The ADA was not notified of this hearing (by law notification is not required). This horrible situation has been addressed by improvements in procedures and communication. The system now has safeguards to prevent this failure of communication, but human error could still allow this to happen in rare instances. - Rose

MAGISTRATE STATUS HEARINGS

In all violent crime cases, there are time limits on how long a suspect can be kept in custody without being charged.

The Magistrate’s court monitors the progress of a case with what is called a status hearing, held every 28 days from the Probable Cause/ First Appearance Hearing). This is a safeguard to make sure that no case becomes “lost” in the legal system’s many requirements.

• If the suspect, who is out on bond, fails to appear in court, they will be subject to being returned to jail, or forfeit (lose) their bail.

TIMELINES FOLLOWING THE PROBABLE CAUSE HEARING

The Magistrate’s court monitors the case through periodic status hearings, every 28 days from the Probable Cause Hearing.

After the Probable Cause Hearing of the suspect, the DA is required to decide what formal charges will be brought against the accused, and determine whether to move forward and take the case to trial.

• This determination must also be made within strict time limits, ranging from 45-150 days, depending on the severity of the crime and whether the suspect is in jail or released on bail.

• Formal charges are made either by filing a Bill of Indictment (from a Grand Jury) or a Bill of Information (from the DA’s office) with the Clerk of Court’s office.

CASE MANAGEMENT CONFERENCES (NOPD AND DA)

The DA conducts weekly Case Management Conferences – also called charge conferences – with NOPD detectives at the DA’s office. The agencies work together to assess their information and prepare the charges. At these regular meetings, detectives will present their findings to the team. In violent crime cases, the DA’s office may do a non-arrest consult in order to evaluate the case with detectives before the arrest of the suspect(s).

The DA has specialized screening teams (like for homicide and sexual assault cases), made up of two ADA’s and a DA investigator, who help assess and prepare the case.

• Also present will be senior staff from both agencies, which might include: the First ADA, the Chief of Case Management ADA, seasoned trial ADA’s, NOPD supervisors, as well as any other relevant agencies. For each case, the Case Management Team will carefully consider the evidence, and because there are “more eyes” on the case, it increases the chances of a successful conviction or a plea bargain; this has been proven statistically.

Personnel and resources will be assigned according to the complexity of the case.

• Issues they might consider include: Are witnesses needed, or is the NOPD report enough? Will field tests (such as gun residue at the crime scene) or crime lab reports be needed? Will the Coroner’s findings be necessary? Survivors and witnesses may be contacted by the ADA’s with respect to the case, but they do not attend these conferences. The team will assess the credibility of witnesses or victims and note if there is a lack of cooperation. They may also seek to get medical records if an assault is involved.

• The team may send the case back to the detectives – many times, if necessary – for any necessary additional investigation.

There are 4 evidence categories they assess:

1. Real (physical items, like a weapon, clothes, or fingerprints)

2. Demonstrative (an idea of what occurred at a particular time and place)

3. Documentary (like a letter, document, or social media post)

4. Testimonial (from a witness).

FORMAL CHARGES ARE DECIDED

The Case Management Team – with recommendations from the detectives – decide what formal charges will be made against the suspect. They determine if the original charges, first made at the Probable Cause Hearing, should be amended (or changed): to upgrade or downgrade them.

• While the NOPD has to establish probable cause to make an arrest, the DA’s office has to prove guilt beyond a reasonable doubt, which is a higher standard. So even though the NOPD may be correct in arresting someone, the DA may still lack the necessary proof to be able to convict them. Thus, certain felony arrests may instead be charged as misdemeanors when accepted for prosecution.

The DA will list each individual criminal charge where the law was broken. Each particular charge corresponds with certain already-established State sentencing guidelines, for example from 5-10 years for a certain charge, and 10-40 years for another charge.

• Each charge violation is numbered in counts (Count 1, Count 2, etc), based on what part of the law was broken. For example, a case may include: Count 1 for aggravated burglary; Count 2 for stalking; and Count 3 for illegal possession of a firearm.

The only crime that is punishable by death is 1st-degree murder. The DA decides if the office will seek a death penalty, and can withdraw seeking it if they decide the evidence is not strong enough to justify such a severe punishment.

The DA’s office may refuse to prosecute a case – this is known as “Nolle Prosequi” or "we will no longer prosecute." If they do this, they send what is called a “buck slip” to the NOPD, explaining the reasons for not choosing to prosecute.

The DA’s office may decide to send the case to another agency, such as the United States Attorney (the equivalent of the District Attorney, but who handles federal cases), for cases such as federal narcotics violations, firearms, or conspiracy to commit a crime. When another agency is taking over, the case is referred to as being “adopted” by that agency. Note that this rarely happens.

JOB OF THE DISTRICT ATTORNEY’S (DA) OFFICE

It is important to understand how the legal system views a violent crime that it intends to prosecute (or take to trial). It is defined as a crime against the State, or society at large (“the people”), and so legally the State takes the place of the individual victim. This is why a case is titled “State of Louisiana vs. the Defendant” – for example: State of Louisiana vs. John Doe.

To handle the case, the DA hires Assistant District Attorneys (ADA) who are lawyers – thus you do not have to hire a private lawyer. The DA also hires investigators.

In all violent offense cases, it is the DA’s office that decides if a case will go to trial. They have to prove a criminal event occurred and that the defendant committed the crime. It is not required to prove the motive, even though motive will seem significant to victim’s families or to a crime survivor. You may feel the DA is ignoring your wishes or feelings, but from the DA’s perspective, survivors must remember that justice is a process, not an outcome, and the DA must follow established rules – even when your focus may understandably get caught up in the outcome of whether the suspect will be found guilty or not.

In a typical trial case, the process of action has usually included:

• An investigation

• An arrest

• A review of your case by the DA and NOPD

• A trial – and even if the jury found the defendant not guilty, you had a group of people who listened to your case.

THE DECISION TO PROSECUTE OR NOT

The DA’s decision to prosecute or not is no way a reflection on you or the trauma you have suffered. It is the DA’s legal obligation to prosecute only when they reasonably believe that a conviction can be obtained against the person the police accuse of committing the offense.

If the DA decides to go forward with a prosecution of the defendant, it only means that the DA reasonably believes that s/he can obtain a conviction of the person in a court of law, given the facts and circumstances of the case. Once the DA accepts a felony case, it then proceeds through the criminal courts.

If the DA decides not to prosecute the case, it does not mean that a crime did not occur, nor does it mean that the person accused by the police is innocent. It merely means that the DA does not reasonably believe there is sufficient evidence to obtain a conviction of the accused in a court of law under the circumstances.

• An arrest can be made using what is considered to be a lower bar of acceptable evidence, such as circumstantial evidence or hearsay; however, in a trial, such hearsay is not admissible. The DA’s office generally encourages the detectives to continue with the investigation in an effort to obtain additional witnesses or evidence to strengthen the prosecution case.

Remember also that many cases result in a plea bargain or are dismissed before trial. Of the roughly 5,000 cases accepted by the DA every year, only about 5% of cases (or roughly 250) of them will go to trial. With the cases that have gone to trial, the felony conviction rate (where the defendant is found guilty) has increased to over 70%.

To summarize: the DA’s office may (a) accept specific charges, (b) decline certain charges, (c) dismiss other charges, or (d) in rare matters, divert the accused (to be tried by another agency, who adopt the case).

ADA = PROSECUTOR = PROSECUTION ATTORNEY

When the case is accepted for prosecution (either by the Grand Jury’s Bill of Indictment, or by the DA’s Bill of Information) and sent to Criminal Court for trial, a particular trial ADA and an investigator are assigned, specific to your section of court; they will be in touch with you.

Your participation with your trial ADA is critically important to ensure that s/he has all of the facts necessary to successfully prosecute the case. Your continued cooperation is vital even when it appears tedious or repetitive. The repeated contact you’ll have with your trial ADA will also allow you to address any concerns you may have with the process or with the quality of services being provided to you.

It is in your interest to insist hearings and the trial are handled fairly by the trial ADA- including proper sharing of documents and other discovery - because if the defense finds out something was withheld, the case can be dismissed and/or retried.

You may not want or need to attend all pre-trial hearings. Ask your ADA and/or Victim Witness Coordinator to advise you on which hearings may be important and significant to attend.

• Also be sure to call your ADA in order to confirm if the hearing is actually happening on the designated date.

Should you experience a lack of helpfulness, ask to speak to the trial ADA’s supervisor, and also try approaching your DA Victim Witness Coordinator.

• The chain of command is: ADA → Division Chief → First Assistant District Attorney → District Attorney.

DA VICTIM WITNESS ASSISTANCE PROGRAM

Once a case is formally transferred to the DA after an arrest, survivors and witnesses in all major felony cases are referred to the DA’s Victim Witness program. You will be assigned a DA Victim Witness Assistance Coordinator based on your specific section of court, to provide emotional and practical support; this assistance is available 24/7. Each Coordinator is highly trained, with a masters’ level degree in counseling or social work.

Types of assistance the Coordinator provides include:

• Referrals for individual and family counseling, and mental illness

• Crisis intervention

• Case management (while the Victim Witness Assistance Coordinators are not lawyers, they can assist with communication between you and your ADA)

• Preparing survivors and witnesses for court proceedings

• Accompanying survivors and witnesses to court

• Providing correct and timely information of court hearings, case status, and case outcome (since delays happen often, they will let you know as soon as they know themselves)

• Keeping your cell phone while you are in court

• Assisting with victim impact statements, and reading them for you in court if you prefer

This is an extremely valuable support system. For example, going to court can seem overwhelming and intimidating, as can trying to understand various legal processes. The Coordinators are also there to ensure you are treated with respect.

COOPERATION BETWEEN THE NOPD AND DA

Weekly Case Management Conferences mean the NOPD and DA are constantly communicating – and this means each case receives serious investigative and legal consideration with input from all involved.

A local watchdog group, Metropolitan Crime Commission (MCC), has concluded “the NOPD and DA’s Office show improvements in efficiency and effectiveness working together over the past several years," and they have also commented that the courts are giving stiffer sentences.

Here are some points from the MCC May 2017 and September 2018 reports:

• Felony arrests as a percentage of all arrests increased from 19% in 2013 to 28% in 2016.

• There was an 81% rate of felony arrests accepted for felony prosecutions in 2015 compared to a 73% rate in 2013.

• The median felony case processing time improved from 182 days in 2016 to 129 days in 2017.

• The median time for the DA to reach a decision whether to prosecute a suspect decreased by more than two weeks from 51 days in 2013 to 37 days in 2015. This reduced time indicates greater efficiency in combined police and prosecutor efforts to progress arrest cases through the criminal legal system.

• Less downgrading of felony charges [to misdemeanors] by prosecutors indicates more accurate charging of suspects by the NOPD at the time of arrest. High acceptance rates indicate that, commendably, NOPD investigations routinely meet the proof beyond a reasonable doubt that standard prosecutors require to accept a case.

• Violent and weapons cases are the most time-consuming to adjudicate and made up 57% of open cases in 2016 and 59% of open cases in 2017 as a result of police and prosecutor focus upon these offenses.

• The number of new felony cases increased by 17%, almost 700 cases, from 4,045 new cases in 2016 to 4,743 new cases in 2017. Violent and weapons cases made up 51% of new cases in 2016 and 50% of new cases in 2017, which demonstrates the focus that police and prosecutors place upon these most serious offenses.

THE BEGINNING OF A PROSECUTION BY THE DA’S OFFICE

The DA must feel satisfied that there is enough evidence to go forward to trial. At weekly Case Management Conferences, the DA determines what specific formal charges should be brought against the accused in going to trial. These may be different from the charges when the suspect was originally booked at the Probable Cause Hearing.

The DA moves ahead with prosecution by either:

1. Presenting the charges to a Grand Jury for it to determine whether to issue a Bill of Indictment;

- Or -

2. Presenting a Bill of Information to the court, written and filed by an ADA.

1) GRAND JURY AND BILL OF INDICTMENT

The Grand Jury’s role is to decide if a person should stand trial to determine innocence or guilt. They will only hear the government’s side of the case (from the DA), and will not give a verdict.

• A Grand Jury is made up of 12 individuals, selected from the public every six months. They meet in weekly proceedings that are closed to the public, and cannot discuss their cases publicly.

In Louisiana, any felony offense that carries the possibility of a life sentence or the death penalty (“capital case”) must be presented to the Grand Jury. These will involve all homicide and aggravated rape cases.

The DA’s office presents evidence to the Grand Jury and asks for specific charges. Police officers and witnesses may be asked to testify under oath at these closed hearings.

The Grand Jury listens, asks questions, and makes one of three decisions:

1. They indict (or formally charge) a suspect with a Bill of Indictment (also called a “true bill”), meaning they find sufficient evidence that the person committed the crime and should be taken to trial. They document the charges for which the suspect must stand trial; these charges may be different from what the DA recommended.

2. There is a “pretermit,” (or abandon for a time) which means the Grand Jury does not have sufficient information to make a decision about what to do in the case. The same case can then be presented to them again later with new evidence.

3. They deliver a “no true bill,” which means there is insufficient cause to charge the defendant. It is then up to the DA to decide if there is further investigation that can be done on the case, and if it could be presented again to the Grand Jury.

-OR-

2) BILL OF INFORMATION BY DA

This is written and filed by the DA’s office on every case – including all violent offense cases – that they decide to prosecute (except for those that are sent to the Grand Jury). It sets forth the formal charge(s) for which a suspect will be prosecuted.

• These often involve cases such as: attempted murder, aggravated assault, forgery, possession and distribution of drugs, and felons in possession of a firearm.

CRIMINAL COURT CLERK AND JUDGE ASSIGNED

The DA takes either the Bill of Information (written by the DA) or the Bill of Indictment (from the Grand Jury) – and files it with the Clerk of Criminal Court.

• The Clerk of Court keeps track of court documents and filings, and prints a list of what cases are to be heard by each judge daily. They also keep track of bond amounts posted for each defendant.

All cases are randomly allotted to a particular section of court, depending on when the Bill is filed.

• There are 12 sections in Orleans Parish: A–L, each with its own judge. Each court has a specific trial ADA assigned.

ARRAIGNMENT

If the suspect is in jail, then approximately 48 hours after the Bill of Information or Bill of Indictment is filed, the suspect appears in court for arraignment, where the specific charges against him/ her are formally read.

• If the suspect is out on bond, it may take about two weeks or longer because a subpoena must first be sent to the suspect informing him/her of the arraignment. If a suspect is “at large,” a judge will place a warrant for the suspect’s arrest, who will then be arraigned when arrested.

Once formally charged, the suspect is now called a defendant and must enter a plea of "guilty" or "not guilty" for each charge – or enter a "not guilty by reason of insanity" plea.

• Expect a not guilty plea to be entered. Keep in mind this is just the beginning of the case in court and both sides are not yet adequately informed – typically, there has been no discovery and both sides will be waiting on investigative reports in order to make later arguments.

• If the defendant does not have funds, a Public Defender will be assigned and paid for by the State. The Public Defender is often only meeting the defendant for the first time at arraignment, and will require time to understand the strength or weakness of the case. Don’t expect the same level of representation that a private defense lawyer would provide - the Public Defender is overworked and underpaid.

A review of the defendant’s bail may be requested at this time, as well as in the future, should new mitigating facts come to light that help the defendant’s case.

PRELIMINARY HEARING (only for Bill of Information cases)

If a Bill of Information has charged a suspect with a crime, s/he will be brought before a judge for a Preliminary Hearing (or “prelim”).

• (Note that if a Grand Jury issued a Bill of Indictment, the defendant will not be given a Preliminary Hearing.)

This hearing provides a snapshot of the criminal case to the assigned trial judge. The ADA will introduce just enough evidence to show the defendant committed a crime. This is not as thorough as the evidence that will be later presented at trial. For example, police officers can present hearsay (what they learned from witnesses or others); hearsay is not allowed at trial.

Witnesses may testify before the judge, providing a description of what happened. The defense attorney will likely cross-examine the witness to better understand the witness’s observations and demeanor (how they present themselves) on the stand.

• A Preliminary Hearing is also a way to preserve testimony, such as if a witness is ill and unable to testify later at trial.

• Again, keep in mind the defense attorneys are just doing their job – and their job is necessary to make sure that innocent families are not hurt – and so their cross-examination is not meant to be a personal attack, even if it feels that way.

The judge’s job is to determine if there is probable cause for the defendant to be held in jail, released on bail, or be released until the trial of his/her case. The information presented may also influence whether the bail will be increased, reduced, or denied. homicides cases, bail is not allowed.)

DISCOVERY

Discovery refers to the investigative process during which the prosecution and defense look for information and evidence to support their case. Discovery includes the process of obtaining documents, confessions, witness statements, police reports, searches, and scientific research. Both sides must be given a chance to review and respond to the evidence of the other side.

The DA must give the defense its entire discovery; however, the defense only has to give the DA the discovery of evidence it plans to use at trial. It is mandatory (required) that the prosecution (DA’s office) provides the defense with exculpatory evidence (also called Brady material), which means evidence that is helpful to the defense. If evidence was withheld, a case can be retried or dismissed.

Both sides must disclose who their expert witnesses (professionals in a particular field) will be, and if they will ask any expert witness to provide opinions on the evidence.

Admissible evidence must be:

• Reliable or trustworthy. For example: was the witness able to see the crime if they have eyesight problems – or if it was dark

– or if an object blocked their view?

• Material or significant facts. The color or type of shoes the defendant was wearing at the time of the crime may be material, but his/her favorite color generally may not be material.

• Relevant facts that help jurors make decisions about the case. Not all past criminal acts are considered relevant as to whether the defendant committed the crime being tried. For example, a defendant’s previous conviction for a gun charge is not the same as him having a current charge for rape. However, some past criminal acts can be introduced, if they show a pattern of criminal behavior.

The goal of discovery in an investigation is to uncover as much evidence as possible to prove that the defendant committed the crime. Thus the process involved in the investigation phase favors the prosecution (your case).

After an arrest, the court system assumes the person is innocent until proven guilty. In order to provide this protection, some procedural rights (court rules) favor the defendant. This may seem unfair, but it is critical to avoid false convictions.

PRETRIAL HEARINGS – MOTIONS – RULINGS

The judge has to decide what evidence and testimony gathered during discovery can or cannot be presented at the trial (such as confessions, searches, and identifications), and will base this on: previous cases, rules of evidence, and legal procedures.

These issues are presented to the judge by lawyers for both sides through legal proceedings called motions (e.g. Motion to Suppress Evidence, or Motion to Suppress Confession of Co-Defendant).

• One side will argue for a particular way to interpret the facts that favor their case. The other side may file a rebuttal, or counter- argument, to show why that interpretation is wrong.

The judge will make important court rulings, or decisions, on each motion – and these motions may be made during trial as well.

It may surprise you that a large part of the information gathered in the investigation might not make it to trial - some of it may be suppressed (not allowed) during the motion hearings.

• Note that a defendant’s criminal history showing a similar pattern of behavior or habit, and details of prior convictions (such as tactics used in similar crimes for which the defendant was convicted) are generally excluded from trial by law as too prejudicial - unless the defendant testifies and confirms it. The law requires defendants to be convicted based on the facts at issue, not facts associated with prior incidents.

Given how much of the trial is influenced by these motion hearings, attending certain ones will give you a better appreciation of what is going to be presented and argued during the trial. Ask your ADA for help in deciding which hearings to attend, as there can be many, often held on different dates. Some can last minutes, and others last days. Some can involve very technical legal issues.

Pretrial hearings will help to assess the strengths and weaknesses of your case. If it is not looking like a conviction will be obtained, you and your ADA might consider a plea bargain.

SIDEBARS = BENCH CONFERENCE

If the lawyers for both sides want to discuss some procedural matters privately with the judge, they will hold a sidebar or bench conference in front of the judge’s desk. This is supposed to be for confidential information that must be shared, but which cannot be discussed publicly. The judge may instruct the lawyers to meet in his/her office, which is called a “meeting in chambers.”

• This can be a frustrating experience for survivors, especially if the reason for the sidebar remains unexplained, which frequently happens. [See Court Watch NOLA's online reports]

CONTINUANCES

This means a delay (or postponement or adjournment) of any court action to a later date, as requested in a motion by either side. This can be granted or denied by the judge.

There are frequent delays in court and trial dates. Certain motions may take a significant amount of time, or there can be changes in ADA’s, defense attorneys and other personnel. Defense lawyers may stall the case as much as possible— delays work in their favor when people forget information, or witnesses may die, or move, or become unwilling to help as time passes.

Expect delays, for they are an unfortunate yet common part of the process. Your ADA or Victim Witness Coordinator will advise you of any changes as soon as they know of them. Also check on Docket Master for updates. Continuances are infuriating, especially when you’ve geared yourself up for going to court, and when you’ve had to make special arrangements, such as work leave, transportation or childcare, to be there.

As Court Watch NOLA noted in their 2016 Annual Report: “It should also be mentioned that with joint continuances [between ADA and defense attorneys], judges do not have the legal discretion to forbid the continuance. Although the judge may want the case to move more efficiently, the judge is barred from doing so if a joint continuance is requested. Out of all the parties responsible for continuances in 2016, the defense is by far the largest contributor to continuances.”

PLEA BARGAIN

A defendant may plead guilty as charged at any time – even during trial – and this will stop the case from proceeding.

• More often, what happens is that a defendant will plead guilty to a lesser charge in exchange for the case not going to trial, and/or in order to get a lighter sentence; this is a plea bargain. Usually what is being negotiated is the amount of jail time the defendant must serve.

If the judge accepts the plea bargain, the result is a conviction (meaning a guilty plea). By pleading guilty to a lesser charge, the defendant waives (or gives up) certain rights, like the right to another trial. However, a defendant is still allowed to appeal his/her conviction to a higher court if s/he received ineffective assistance from their lawyer.

If the defendant has a prior history of violence, this will lessen the likelihood that the DA will agree to a plea bargain.

Sometimes the DA may make a plea bargain with a defendant so they can get testimony against another defendant who was more at fault in the crime. The DA will therefore offer plea deals to a defendant in return for testimony about another crime. Also, sometimes allowing a defendant to be punished for a lesser charge is better than going to trial and losing everything.

Your ADA should discuss the terms of the plea bargain with you; make sure you ask them to do so. The ADA will generally involve the family and carefully consider their views in reaching a decision to offer a plea. However, it is up to the ADA to accept the terms of the plea in the interests of society, as opposed to your interests.

CASE DISMISSAL – OR DROPPING CERTAIN CHARGES

After a case is filed in court, the DA may decide to stop prosecuting a case – or otherwise dismiss, or amend (change), specific charges within it – without making a decision as to the guilt or innocence of the defendant.

• Charges cannot be dropped at the request of the victim.

Reasons why the DA might dismiss a case or drop charges include:

• There is insufficient evidence, or it turns out the evidence is not as strong as thought initially, for the charges to hold up

• Witnesses aren’t available, don’t show up, are uncooperative, or are deceased

• New evidence comes to light that contradicts or undercuts the basis of the case

• Important evidence is deemed inadmissible - for example, if it becomes known that it was obtained without a proper warrant, or wasn’t described in the arrest warrant

• A defendant’s rights were violated - such as through an illegal stop, or failure to read Miranda rights

• A defendant is willing to provide testimony on a bigger case

A judge has the right to grant a pre-trial motion to quash a Bill of Information or Bill of Indictment. This will halt the prosecution, but the DA has the right to appeal the judge’s decision. Reasons for granting a motion to quash may include: prescription (time to prosecute has run out), or the charge was filed in the wrong venue/jurisdiction.

TYPES OF TRIALS

A trial, which serves to decide whether a defendant is guilty or not guilty, can proceed in two ways:

1. Before a jury of 12 people and 2 alternates (in case a jury member gets sick or is dismissed, etc.). Jury trials are the most common. The trial judge supervises the jury.

- Or -

2. Before a judge, called a bench trial.

The defendant has a right to a jury trial in criminal cases. A defendant can waive their right to a jury trial 4-5 days before trial and request that their case be heard before a judge.

In either a jury trial or bench trial, there are typically two (or sometimes one) attorneys for each side, with a lead attorney for each side. Your lead attorney will usually be the ADA with whom you have been working.

TIME IT TAKES FOR CASE TO GET TO TRIAL

The beginning of a trial can take months or years from a defendant’s first appearance in court. Reasons might include:

To allow the defense to prepare its case; Pretrial motions; Continuances; Change in DA and/or defense counsel; Missing evidence; Failure of witnesses to appear; Mental health of the defendant; How many cases a judge is working on (a judge can be handling up to 300 cases at a time).

It is not unusual for a major offense case to take 2 or 3 years from the time of the crime before it goes to trial. This is why people often comment that the justice system is yet another punishment. If the case involves the death penalty, it can take an additional average of 6-10 years for the appeals to be exhausted (or completed).

The prosecution of a non-capital case must occur within certain time limits (e.g. six years for a felony punishable by hard labor; six months for a misdemeanor punishable by a fine).

Delay in a trial will typically benefit the defendant. Witnesses forget or become unavailable. Thus generally, the longer it has been since the crime, the harder it may be for the DA to prove its case.

MENTAL STATE AND ABILITY TO STAND TRIAL

The defendant’s mental condition may affect whether they can be tried in court, or if tried, may limit the punishment that may be imposed. A defendant may avoid a trial if s/he is determined “incompetent to stand trial,” which refers to whether the defendant is able to understand the charges against him/her by the State, and if s/he is able to give meaningful assistance to his/her attorneys at trial. If this is raised, a judge will order a mental health evaluation to determine whether to conduct a trial. If the evaluation deems the individual “incompetent to stand trial,” they may be sent to a forensic mental health facility for treatment. When they are evaluated and deemed “competent to stand trial,” the court proceedings can then move forward.

A defendant may also claim to be not guilty by reason of insanity. The defense attorneys will then present an affirmative defense that while committing the crime, the defendant’s mental state prevented them from understanding the terrible and wrong nature of their acts. The defense has the burden of proof to prove that this was the case.

• If a jury or judge finds the defendant insane at the time of the crime, the defendant will be acquitted and sent to a forensic mental hospital. At a much later stage, a judge can release the person if s/he is not considered to be a danger to him/herself or others; otherwise, the person is never released.

• The death penalty may not be imposed on a person classified as mentally incompetent, if found guilty.

STEPS IN A JURY TRIAL

1. A jury is selected.

• Both the ADA and defense attorneys ask the jury pool various questions (called voir dire and pronounced ‘vua-deer’), and are allowed to exclude a certain number of people from serving on the jury.

• A possible juror will be excused if they have any relationship with someone involved in the case, to avoid any bias or likelihood of favoring that person.

• The use of the internet has also become a powerful tool in checking up on possible jurors. Attorneys will use the internet and social media to challenge a prospective juror’s background, opinions, and cultural attitudes.

• Jurors are expected to have an open mind and hear all the evidence before deciding if a defendant is guilty or not, and what their sentence should be.

• Jurors are not allowed to discuss the case outside the courtroom. Some juries may be sequestered (or isolated) if the judge wants them to avoid any outside influence, such as from the media or individuals associated with the case.

2. The prosecutor (ADA) is required by law to give an opening statement to outline and summarize what they intend to prove. Since the State has pressed charges (via the DA), they have the burden of proof to prove their charges beyond a reasonable doubt (which is the highest standard of proof used in any court litigation).

• After this, the defense may give their opening statement opposing the prosecution charges. However, the defense counsel doesn’t have to do anything because they do not have the burden of proof.

• A defendant can decide to represent him/herself, which is called pro se, but this rarely occurs. Pro se means the defendant is directly involved in jury selection, opening and closing statements, and cross-examining witnesses, etc. The court will generally try to discourage this, as basically all self- representations lose their case.

3. The prosecution (DA) is the side that first presents evidence – this can include testimony from witnesses, experts, police, the Coroner, material evidence, or anyone relevant to the case, that the judge has allowed to be used at trial. The judge does not know what non-expert witnesses either side will call, and this is often as much a surprise to the judge as to the court audience. Every person takes an oath to tell the truth; giving false testimony is called perjury, and is a serious crime.

The ADA will question their witnesses first, which is called a direct examination. The witnesses must answer with their own direct knowledge – because hearsay (or indirect knowledge, such as what someone has heard from others) is not admissible at trial.

Then the defense lawyer can ask questions to test that witness’s evidence and memory of the facts – this is called cross- examination. It is not a requirement for the defense to do this, and sometimes the lawyer will decide that it isn’t in their best interest to ask anything.

• Once the defense finishes their cross-examination (if they choose to do so), then the ADA may ask further questions of that same witness. This process is the same for every person who testifies as to the facts of the case.

If you are a material witness (a person with direct knowledge of the crime), you may receive a subpoena to report to the trial – this means you have to testify, and “tell the truth, the whole truth, and nothing but the truth.” You may be excluded from the courtroom while other witnesses testify, to ensure your testimony is not influenced by what others say.

The ADA will meet with you ahead of time to interview you about the facts. If you are a witness and you are asked if you’ve discussed testimony with the ADA, it is appropriate to say yes. Make sure you understand the questions being asked of you – you are allowed to ask for the question to be repeated. Be plain in your responses and answer the question only, and avoid making judgmental statements. If you do not remember something, say so—do not guess. Maintain eye contact with the person questioning you.

Expert witnesses may be called to give their opinions on matters in their field of expertise. This includes forensic science, such as DNA testing, or toxicologists for drug analysis, or weapons testing, or computer forensic testing to recover deleted information.

Exhibits such as photos, documents, or physical objects from the crime scene, can be admitted at a hearing or at trial. Exhibits are given a numbered identification.

• Even during trial, the opposing side can object to admitting the evidence, which results in a legal argument; the judge will rule on what is allowed. (However, most of this will have been decided during pre-trial discovery motions.)

Note that evidence may include graphic and disturbing details – ask your ADA to tell you in advance when this might be presented so you can prepare yourself for it, or leave the courtroom before it is shown.

4. During trial, while one side is asking questions, the other side’s lawyer can raise objections, which indicates they think the question is unfair.

• If the judge sustains the objection, it means the judge agrees that the question is not allowed and that the questioning needs to change.

• If the judge overrules the objection, the lawyer can continue with his/her line of questioning.

• (These objections may become important later for any appeal of the trial.)

5. The prosecution “rests” (or has completed) its case.

6. The defense then calls its witnesses, which the prosecutor can cross-examine. However, the defense team does not have to present any case.

• Note that a defendant has the right to remain silent and cannot be made to testify against him/herself. The jury will be instructed not to hold this against the defendant.

• You may also be surprised and shocked by some details that emerge during trial about your loved one, or even yourself. Remember that the defense will show the best side of the defendant and not the best side of the victim (while you can expect the DA to do the opposite). Keep your view on what you know to be true about yourself and/or the person you loved.

7. The defense “rests” its case (if it decides to make one).

8. The prosecutor can present evidence or witnesses to challenge the evidence presented by the defense.

9. The prosecution “rests.”

10. The prosecutor makes a closing argument to the jury, followed by the defense’s closing argument. Each side tries to summarize their version of the facts in order to persuade the jury (or judge, if it is a bench trial).

At any time during the presentation of the case, before closing arguments, either side’s attorney or the judge may call a bench conference or sidebar (with only the lawyers and judge). This conversation is usually to discuss points of law or confidential information and is “off the record,” and thus not recorded by the court reporter.

11. Duties of Jurors: During the trial, the jury is not allowed to discuss evidence from the case or form an opinion with any other jurors or with anyone else.

• The jurors may only see evidence that the judge and lawyers for both sides have agreed they may see. The jury may be made to leave the courtroom, if the judge has to hear matters to be decided by the court alone.

• Sometimes jurors may be allowed to take notes. This is decided between the DA and defense in open court, but not in the presence of the jury. The trial judge will be responsible for the destruction of the jurors’ notes immediately upon the return of the verdict; therefore, such notes cannot be used in an appeal.

• The jury is tasked with being the sole determiner of the facts (or “trier of truth”) and must also decide on the credibility of witnesses (whether they are believable). In order to determine that a defendant is guilty, the jury’s “standard of proof” must be guilt beyond a reasonable doubt.

12. The judge gives the jury legal instructions about the law.

• The judge will advise the jury that the opening and closing statements of both legal sides are each one’s summary of the case – and not evidence. The judge will tell the jury what legal issues are being argued.

Some judges let jurors know in advance what the mandatory minimum and maximum sentencing guidelines are for each charge, telling them the range of years the judge must use when the jury finds the defendant guilty on each charge. For example, an illegal possession of a gun may carry up to a 10 year sentence, and armed robbery may get up to 15 years.

13. The jury deliberates (or argues the case). The jury chooses one person to be the “foreperson,” who communicates with the court if any clarification of the law is needed; only the judge may answer these questions. At the discretion of the judge, jurors can request and further inspect the exhibits presented, plus review parts of the trial testimony record from the court reporter.

After debating the case, the jurors each cast a vote. In a criminal trial, all 12 jurors must agree unanimously to the defendant’s guilt for there to be a guilty verdict.

14. If the jury is unable to reach a conclusion about the case, it is called a hung jury, and the judge will declare a mistrial. The DA must then decide if they will retry the case.

15. When the jury reaches a verdict, they let the judge know. Both sides (DA and defense) must meet in the courtroom where the verdict is announced.

• If a verdict has been reached, the defendant cannot be tried for a second time using the same charges and the same evidence (called “double jeopardy”).

16. The judge will determine the sentence the defendant will get, based upon a range of years that have been set by Louisiana state law. The judge is allowed to decide how many years within the range to apply, based on the facts of each case.

BENCH TRIAL

This is basically the same process as the jury trial, but the judge takes the place of a jury. The judge decides what facts to believe, and decides the verdict and sentencing. A judge cannot hear a death penalty case – it must be heard and decided by a jury.

PRE-SENTENCE INVESTIGATION AND REPORT

The defendant’s criminal background is summarized, and, if relevant, the probation department prepares a report. Important information about the defendant, including previous history of crimes, and letters about the defendant’s character, are also included.

The defense may introduce mitigating (or helping) circumstances to explain the defendant’s actions, which might include abuse in the defendant’s background, or pressure put on the defendant to commit the crime. These factors do not excuse the crime or justify why it happened, but are given to the judge to aid in deciding the appropriate sentence. This is why there are ranges of punishment set for each crime.

SENTENCING HEARING (For a “guilty” verdict)

The judge decides the timing of the hearing, but will typically discuss a suitable date so that relevant parties may testify at the hearing. Usually sentencing is set 2-4 weeks after a verdict.

• The victim’s family should be consulted by their ADA before sentencing; be sure to ask them to let you know as soon as they do.

You (and a few others) may be allowed to make a victim impact statement at this time if you wish to do so, or have someone read it on your behalf.

The Louisiana Legislature provides sentencing ranges that determine the length of imprisonment allowed for each charge. Generally the more serious a crime, the longer the potential sentencing range.

• Defendants who have prior convictions can be sentenced under the Louisiana habitual offender statute: this statute mandates mandatory minimum sentences and significantly increases the sentencing range available to the judge.

• All defendants convicted of 1st- and 2nd-degree felonies must be sent to the Louisiana Department of Public Safety and Corrections, which is a state-run prison (as opposed to parish prison), and are sentenced to hard labor.

• Some verdicts run concurrently, meaning that the punishment for each charge runs at the same time as other charges, but the time of their sentence will be based on the charge with the longest amount of years.

• Once a conviction is made, the Department of Corrections is notified.

RESTITUTION

This refers to compensation for injury or loss. With a guilty verdict, the judge may order restitution from the defendant(s) for actual financial losses caused by the crime. This does not guarantee that a defendant will be able to pay this amount. Restitution orders are separate from monetary awards given in civil cases. Items that can be claimed for restitution may include:

• Medical expenses not covered by insurance

• Lost property or repairs to property

• Money illegally taken or other financial expenses as a result of the crime.

DEATH PENALTY (OR "CAPITAL") CASES

Death penalty cases take a lot longer than other kinds of trials, given the finality of a death sentence.

• The DA can decide to seek the death penalty, as well as choose when to announce it, and may also elect to withdraw it.

PENALTY PHASE (FOR DEATH PENALTY CASES)

If the defendant is found guilty and a life sentence or the death penalty is being considered, there is a second part of the trial called the penalty phase, and it is the jury who will determine the appropriate sentence to be served.

• Another way to understand this is: The trial was the first phase that established the defendant’s guilt. The second phase, or the penalty phase, recognizes that there are levels of guilt among people convicted of similar crimes. Other aspects might include the defendant’s criminal history, and whether s/he has a previous major felony conviction.

APPEALS IN APPELLATE COURT

With a guilty verdict, expect appeals to be made afterwards. An appeal is a formal process that allows a defendant the right to have any aspect of the trial reviewed on legal grounds by a higher court – every state has special courts that hear appeals.

• An appeal will not consider the facts of the trial, but only decide if serious legal errors were made at trial.

When a lawyer has made an objection during the trial, this is a way to preserve the argument for appeal. These objections form the basis for appeals once a verdict has been given, over such matters as:

• Incorrect statutory (legal) rulings on evidence allowed in or not allowed in

• Ineffective assistance by the defense attorney

• Prosecutorial misconduct (such as withholding evidence).

Most appeals do not change the result of the trial, but are made in the hope that something in their argument might give the defendant another chance to prove his/her innocence.

Note: The DA’s office cannot appeal a verdict.

The appellate (or appeal) court reviews the record of the trial and determines if legal proceedings in the trial were fair and done according to law. If there were errors made by the attorneys or the judge at the original trial, and the appeals court judge determines that serious mistakes were made which could have led to an acquittal (not guilty verdict), then the appellate court can reverse a conviction.

If the appeal court reverses the conviction, the DA may decide to retry the case; this re-trial is then a second trial in the Criminal Court where new information or evidence must be presented. Note that the defendant cannot be tried again using the same charges and the same evidence (“double jeopardy”).

If the appeal court upholds the conviction of the trial verdict (meaning they agree with the verdict), the defense may continue to appeal the case to higher courts to review each lower court ruling.

Two years after the final conviction, a defendant may still file for post-conviction relief if there has been ineffective assistance from the defendant’s counsel, or if there has been prosecutorial misconduct. This is called habeas corpus.

There are many levels of courts that may review a case during the appeals process. This would first include the Louisiana State Supreme Court; then next is to the United States Court of Appeals for the 5th Circuit; and finally and very rarely, is the United States Supreme Court (the highest level of court in the country).

Defendants are entitled to a free lawyer for appeals up through the Louisiana circuit courts – but after this, they must get their own lawyer (for federal levels). Once a trial verdict has been issued, the defendant’s constitutional right to a speedy trial has been satisfied; thus appeals can take a very long time.

• As you might imagine, these appeals can take years to resolve and prove to be very frustrating.

INCARCERATION

Most people with felony convictions will serve their sentence in one of the prisons run by the Louisiana Department of Public Safety and Corrections. Some options – starting with the harshest – include:

• State prison (long-term sentences at hard labor for serious offenses). Perhaps the best known of these is the Louisiana State Penitentiary (Angola), the maximum-security prison holding thousands of individuals, including all male individuals sentenced to death

• County or parish jail (short-term sentences for less serious offenses; this is not at hard labor)

• Probation (allowed to be in the community on certain conditions, and usually reporting to a probation officer)

• Fine or restitution

• Community service

• Or a combination of the above.

The Crime Victims Services Bureau (CVSB), within the Louisiana Department of Public Safety and Corrections, attends to issues a victim’s family would have concerning the incarceration of the individual convicted for a crime.

• Find out more about how to register to receive notifications about the incarcerated individual in our guide here (Register for Victim Notification) such as: Initial housing location and projected release date; Release from incarceration by any means, including death; Sentence change due to court actions; Assignment to work transition programs; Escape and apprehension; Parole and pardon hearings.

The CVSB handles important programs such as Individual/Group Counseling, Help with Victim Impact Statements, an Accountability Letter Bank, a Victim Offender Dialogue, and a Victim Impact and Guest Speaker Program. Find out more about these programs here: Victim Services - Louisiana Department of Public Safety & Corrections.

PAROLE

The sentences given down after a guilty verdict are often not served in full (unless they are life in prison without the possibility of parole, or the death penalty).

• Parole allows for the release of an individual from prison, although that person is still considered to be in legal custody of the State. The individual agrees to accept all terms and conditions of their parole agreement, and will not be released until signing the agreement. Parole can be revoked, or reversed, if the person violates their parole order. A parole officer supervises parolees to see that they fulfill their conditions.

If someone received a sentence where they will be able to apply for parole, the Committee on Parole and Board of Pardons will send to registered victims a notice of the parole and pardon hearings, which is mailed to victims and certain other persons at least 60 days before a hearing date; investigators will also attempt to contact the victims.

• Louisiana has a “good time law” where an incarcerated individual can get credit for time served if they exhibit good behavior. Parole may occur after a certain amount of the sentence has been served, depending on the type of crime involved. If an individual is denied parole, they may request consideration for a further parole hearing at various intervals.

You may request to give an updated victim impact statement, explaining how the crime continues to affect your life. You are also allowed to send a letter to the Parole Board to be included in the file, or testify by telephone from a local DA’s office, or appear in person at the hearing, which is held in Baton Rouge by the Committee on Parole.

The Governor of every state has the right to commute (to change or shorten) an individual’s prison sentence, or to pardon (or release) an incarcerated individual.

VICTIM IMPACT STATEMENT

At sentencing, you have the right to make a victim impact statement in front of the judge and defendant(s) in the courtroom to express how the crime has affected your (and your family’s) life. This is the only time you have a direct voice in the courtroom.

• This statement is voluntary, meaning you are not forced or obliged to make one, but it is your right to make such a statement if you choose to do so. You can have someone else read it for you, including the DA Victim Witness Coordinator.

You can tell the judge anything you want him or her to know about yourself and/or your loved one and the kind of person your loved one was. You can include photos, memories, hopes and dreams, or any other information about yourself and/or your loved one.

• Keep in mind that the judge will only allow a certain amount of victim impact statements, and they should not be overly long or repetitive of comments made before.

Many victims find it helpful to organize their statement by emotional, physical, and financial effects. You may choose to write a rough draft before completing the final statement, and show it to your ADA and/or DA Victim Witness Coordinator first.

For emotional impact, consider the following:

• How has the crime affected you and those close to you?

• Have your feelings about yourself or your life changed since the crime?

• Have you had suicidal thoughts?

• Has your ability to relate to others, such as family, friends, and coworkers, changed?

• Have you needed to seek out victim services, such as counseling?

If you or another family member were injured, you can tell the court of your physical impacts:

• What physical injuries occurred?

• How long are the injuries expected to last?

• What medical treatment has been received or is expected?

• What changes have you made in your life as a result of these injuries?

• What physical side effects do you have (like insomnia, low energy)?

You may also want to discuss how you have been financially impacted:

• How has this affected your ability to earn a living or your household’s finances?

• Have you lost time from work? Have you had to take time off to go to the doctor or courthouse?

• Have you had to obtain a loan, or mortgage property?

You now have the chance to stand and put a human face to your tragedy. It is a way to restore a sense of control and relieve some of the frustration you have felt. It is also a way to say what has been stored in your heart. It can be strangely healing to have this heard publicly. Speaking on behalf of yourself and/or your loved one can be an extremely empowering experience.

• One example of a powerful impact statement was made by a sexual assault survivor, Chanel Miller (you can read it online, and/or hear her recording of it). Her rapist was given a lenient sentence by the presiding judge, and the resounding outcry led to new legislation regarding sentencing guidelines and also resulted in the judge being recalled from office.

In my situation, I never got to make an impact statement, since the killer died in jail. However, I wrote down what I would want to say to him, and that was also helpful. - Rose

ARRANGEMENT OF THE COURTROOM [Refer to diagram]

The judge wears robes and sits at a high desk, called the bench. The court is in session when the judge is on the bench. The judge is referred to as “Your Honor.”

Witnesses are brought to testify at a special seat near the judge, called the witness stand. This is why it is called “taking the stand.”

The jury is brought in from the jury room, and sits alongside a wall close to where the judge sits.

Lawyers for prosecution and defense each sit at a large table facing the judge and witness stand.

• There is a railing behind the attorneys’ table, called the bar, and only official people are allowed in front of it.

There is always a court reporter or court stenographer whose job it is to write down everything that is said “on the record” at trial, using a stenotype machine.

The audience or spectators, including family members and friends, sit behind the bar. Generally speaking, those interested in either the prosecution or the defense sit in the audience, and usually sit on the side behind the appropriate lawyer.

There will be a Bailiff (a type of Deputy Sheriff) present in the courtroom for security and implementation of any judge’s orders. The defendant is held under guard in a secure holding cell during breaks.

COURTROOM TIPS

Be respectful of the court by following its rules.

You will go through security upon entering the building, similar to that at airports that check your bags, and you will pass through a metal detector.

No cell phones or cameras are allowed inside.

It helps to have someone with you in the courtroom. The DA’s Victim Witness Coordinator can be there with you, and/or you can ask supportive friends to come along.

• According to an NOPD Chaplain, many people feel like they are being victimized all over again when going through a trial and having to relive everything again, so plan to have someone to talk to.

Prepare a courthouse bag. Include tissues, cough drops, mints (but nothing that crackles, including noisy wrappers), change for the vending machine (you cannot bring in any food), change for phone booths, a cushion for the hard benches, and an empty water bottle that you can then fill from a water fountain. Have a book or magazine handy, since there can be long delays. Bring a pen and small notebook for notes and any questions you may want to ask your ADA during a break. Some courtrooms are quite cold, so bring something warm if needed.

It is recommended that you not make direct contact with the accused or any court personnel (e.g. judge or bailiff) outside of court.

The DA Victim Assistance Coordinators always make an effort to get space in the courtroom for victim survivors. Reach out to them first if there are any issues with a lack of seating.

Don’t be distressed if you see your ADA and defense attorney being friendly to one another, since they must interact on a regular basis, and they have a professional obligation to remain civil and courteous when in court.

The defense attorneys may make comments about you and/or your loved one that you find upsetting, depending upon the defense strategy (sometimes the goal is to try and remove responsibility from the accused by placing it on the victim). Because of this, it is a good idea to have someone there you can lean on for emotional support throughout the trial.

Some people recommend getting as many people to attend the trial as possible. This can send a message of support that the jury and judge will at least notice. However, don’t despair if there isn’t a big turnout—the facts of the case are what really matter.

You may find it helpful to attend other felony or murder trials, to help prepare you for what to expect in your own trial. It makes sense if you can attend some conducted by the judge who is handling your case. Of course, it is a sad thing to experience—by their nature these are unhappy events, because even if the defendant is convicted, there still remains the underlying loss and trauma. A word of caution: each case has its own circumstances so it is likely one may not look like the other.

Ask a support person(s) to keep others updated on the trial via the internet or phone calls. For your own records, you can cut out newspaper clippings, and ask others to record various channels of news coverage if you want to keep them.

DISAPPOINTMENTS AND CHALLENGES

Some challenges experienced by those who have gone through a trial include:

• Outrage at the leniency of the sentence

• Anger over a plea bargain arrangement

• The seeming indifference of officials involved, as well as from the community

• Feelings of guilt for not having protected oneself and/or the victim

• Feeling that you and/or your loved one is not being treated as a real person, or that the defendant gets more rights than the victim

• Sensational and inaccurate media coverage, or none at all

• Unanswered questions about the crime or the criminal legal system (e.g., why a confession was thrown out)

• Financial burdens attending court appearances

• Increased strain on marriages and family relationships, sometimes resulting in divorce, and negative effects on children

• Bitterness and loss of faith in the criminal legal system

REFLECTIONS ON DEATH PENALTY (“CAPITAL”) CASES

This is a touchy subject, and a personal one, but you might consider these issues:

• Most families report that seeing the individual convicted of the crime executed brought no relief, leaving instead a strange emptiness. A poll in March 2016 found that Louisianans prefer life sentences to the death penalty at a rate of 2 to 1.

• There are enormous costs involved in seeking the death penalty (compared to life in prison) because they require more experts, more attorneys, and endless appeals that clog the court system for years.

• It costs taxpayers between $2 to $5 million per death sentence for the trials and appeals involved. Life in prison averages $1 million (40 years at $25,000/year).

• The Louisiana Public Defender Board currently spends about one-third of its $33 million annual budget on capital cases. This translates into a crisis of providing representation to other defendants, thus badly slowing down cases in court.

• Most District Attorneys and law enforcement chiefs further agree the death penalty is not an effective crime deterrent. Nonetheless, those huge costs are borne by taxpayers, often by increasing taxes or cutting services like police or highway funding. That extra money could be used instead for more police, better lighting, education, and other services to victims.

• The death penalty is rarely carried out. Since 1976, 28 executions have occurred (two since 2000), which is about death sentences handed out.

• Innocent people continue to get executed, and poor people get the worst of it: “Capital punishment means them without the capital get the punishment.” (See the Innocence Project New Orleans.) Those who are sentenced to death aren’t always those whose crimes were the worst, but are more likely to be poor, people of color, and those whose victims were white people. Black male defendants are 30 times more likely to face the death penalty if his victim is a white woman as opposed to a black man.

In the beginning I was eaten up with a burning desire for revenge, but felt stymied because my late husband and I had been opposed to the death penalty. But when murder happened to my loved ones, I wanted the most severe punishment possible; later, I changed my mind. - Rose

A NOTE ABOUT COURT WATCH NOLA

Their mission statement states: “Court Watch NOLA is dedicated to promoting greater efficiency, transparency and procedural fairness in Louisiana criminal courts through citizen involvement and courtroom observation.”

Court volunteers – citizens who offer their time – monitor cases in each criminal courtroom, observing the treatment and handling of these cases by all official participants. They document how each judge handles his or her courtroom, noting things like the rate of continuances granted and time between them, number of closed cases, and case management. They also observe the defense and prosecutions requests for continuances, and readiness for hearings and trials.

• You can read their assessments and comments on every courtroom in their annual reports (at www.courtwatchnola.com).

• At some point, you might want to consider being a volunteer; the organization provides the necessary training.

ROLE OF THE JUVENILE COURT

When an individual accused of a crime is under the age of 18, the process is different than for adults; it is required to be faster, and a judge makes most of the decisions.

The Juvenile Court deals with criminal cases, as well as issues of adoption, abuse and neglect. It has four sections to handle criminal cases, which are referred to as delinquency cases.

The Juvenile Court is located at the same premises as the Juvenile Detention Center. This venue provides quicker and better communication between the ADA, the Public Defender, and the judges. As a result the court is able to be more responsive to a youth’s needs, since the ADA and Public Defender are always available for an emergency hearing, and the time to disposition (from the arrest to the trial) is also improved.

PROBABLE CAUSE HEARING

Police must complete a written report and submit it at the time of arrest to the Juvenile Division of the DA’s office.

If the youth is arrested and put in jail, they must be brought before a judge within 3 days, and the arresting officer will testify. This first appearance is known as a Probable Cause Hearing in Juvenile Court (similar to the Probable Cause/First Appearance Hearing for adults).

• A Public Defender will be assigned to represent the youth, unless the family hires a private lawyer.

• A Juvenile ADA will contact the victim’s family at the time of the arrest.

The judge may review their prior criminal record and determine if the youth should remain in custody. The judge will consider the seriousness of the crime and its circumstances, and if the youth poses a threat to others. Based on this, the judge may release the youth without restriction, on bail, or keep them in jail until trial.

DECISION TO PROSECUTE IN ADULT OR JUVENILE COURT

The ADA decides on the appropriateness of the case for prosecution. They also choose where the youth will be tried (adult or juvenile court) if the youth is 15 years of age or older. In general, individuals older than age 15 who are charged with 1st degree murder, 2nd degree murder, aggravated rape or aggravated kidnapping, can be tried in an adult court and receive adult sentences.

Before a youth can be sent to adult court, there must first be a transfer hearing (or “Article 305 hearing”) before a Juvenile Court Judge. At this hearing the ADA must establish probable cause that the youth committed the offense, showing that the arresting officer had a reasonable basis to make the arrest. If the Juvenile Court Judge grants such a transfer, the youth is immediately transported to Orleans Justice Center and held as an adult pending trial. If the case is assigned to adult criminal court, the process will follow the adult proceedings.

DELINQUENCY PETITION

The legal case begins when the ADA agrees to try the case and files a “Delinquency Petition” (similar to the Grand Jury's Bill of Indictment or DA's Bill of Information in adult court). A Delinquency Petition is usually filed within 48 hours of the initial Probable Cause Hearing.

ARRAIGNMENT

An arraignment happens within 7-10 days of the arrest. The Public Defender or private defense attorney will discuss the case with the youth and their guardian. At this stage, the Public Defender or defense attorney must enter a plea of guilty or not guilty on behalf of the youth.

If there are multiple defendants in the case, and if the different families cannot afford an attorney, the court appoints an attorney(s) from a panel of lawyers in order to avoid any conflict of interest.

TRIAL

For all cases the DA decides to prosecute in juvenile court, a trial is held within 30 days of the youth’s first appearance in court, if they are still in detention.

• If the youth was already released, the trial must be held within 90 days of their first appearance.

• At trial, the ADA must prove the case beyond a reasonable doubt to the judge (there are no jury trials). Police officers and witnesses may be called to testify, and the defense attorney may question them.

• The defense attorney can call witnesses to challenge the case, and the ADA can question them. As with adults, a youth is not required to testify at trial.

• If the judge finds the youth guilty, they are determined to be a child that has committed a delinquent act. *Note: these are legal terms. For more detail on the Juvenile System, refer to the Louisiana Children’s Code.

SENTENCING

The judge decides the sentence based on the facts of the case. There are restrictions on the maximum amount of time a youth may be incarcerated, based on the defendant’s age at the time of the offense:

• If the youth was under the age of 10, they cannot be incarcerated for the offense. The Juvenile Court may place them in a group home or a special treatment facility, but not in jail.

• If the youth was over 10 years of age but under 13 at the time of the offense, they may be incarcerated until his/her 18th birthday.

• If the youth was over age 13 at the time of the offense, they may be incarcerated until their 21st birthday.

• There are certain crimes for which a youth must be incarcerated until their 21st birthday: 1st and 2nd degree murder, aggravated rape, and aggravated kidnapping. If judged delinquent for any of these charges, it is a mandatory “juvenile life sentence” until age 21. The Juvenile Judge has no discretion on such a sentence and there is no suspension of sentence, probation, parole, or early release.

• If the charge is armed robbery, the Juvenile Judge has discretion as to the sentence, based on the facts of the case - but whatever sentence is issued, it must be served without benefit of parole, probation, suspension or modification of the sentence.

• A youth cannot receive the death penalty.

• The youth cannot be registered with LA VINE.

The appeal process for a youth is the same as the process described for adult defendants.

PAROLE ISSUES

In 2012, the Supreme Court of the United States decided a case called Miller v. Alabama. The court ruled that sentencing a youth to life without parole is cruel and unusual punishment.

• This now means that at the sentencing (held after the defendant is found guilty), the judge will determine if the youth defendant is eligible for life with benefits (parole) or life without benefits (no parole), taking into consideration mitigating and aggravating circumstances. Thus the judge is allowed to deny the option of parole. However, if the possibility of parole is allowed, a certain amount of years will have to be served.

In the traditional form of legal court proceedings, many victims complain of feeling ignored, neglected, or even abused, because the State doesn’t care about the crime as personally as the victim does. Currently, a crime is considered to be a law broken, and the offense is against the State. The State considers the crime to be primarily its concern, and the victim has limited input.

• Also, the courtroom is a warlike setting where one side “wins” and the other “loses.” What’s more, the defendant is trying to admit or explain as little as possible, leaving the victim with many unanswered questions. In this type of traditional justice system, the person who is harmed or left behind has little say in the process.

Restorative Justice is an alternative to the traditional justice system. The restorative process aims to bring humanity back to the legal process with a belief that it is relationships that are broken, and that the offense is against another human being.

The primary focus here is on what the victim needs and what the individual convicted for committing the crime can do to repair the harm that has been done, as much as possible. The survivor has a voice in Restorative Justice.

Note: Restorative Justice cannot be done if there are appeals, civil suits or parole processes pending.

VICTIM-OFFENDER DIALOGS

The needs of the survivor are addressed in a series of meetings called “victim-offender dialogs,” held separately with the survivor and with the individual who committed the crime, under the guidance of a facilitator.

• In order for the dialog to take place, the individual who committed the crime must admit responsibility for the offense, and is asked to consider their past actions and their possible impacts. Note that they need not be remorseful, but only admit to wrongdoing.

• Each party talks separately with the facilitator. These separate sessions may occur a number of times to encourage introspection, insight and reality-based observations. Letters between the victim and the individual who committed the crime might be exchanged at some stage, but only if this is agreeable to the victim-survivor.

Finally, with the facilitator present, the process may result in a face-to-face meeting. The survivor can express the impact of the crime on his or her life; it obliges the individual who committed the crime to understand that the crime has harmed another person, not the State. It also allows the person harmed to learn details of the crime that only the person who committed the crime will know.

This meeting can happen at any time. It is not unusual, for example, for meetings to take place years after the event, after the individual who committed the crime has been sentenced and is in jail. That person may be the only one who can answer questions about the last moments in a loved one’s life, and/or the reasons behind their actions.

PREPARATIONS

It’s important to know what your expectations are, and to share these with your facilitator. For example, you might want to find answers, and/or focus on the impact of the crime, and/or hear an apology, and/or even offer forgiveness. Be aware that you might not hear what you want to hear, which might distress you more. For example, the individual may admit to harming you or your loved one, but not express regret. Engaging in this process may be emotionally difficult and is a very personal choice.

A facilitator will typically ask you to write out a list of questions that the facilitator will ask on your behalf. This offers a way to communicate directly about what happened, rather than get information that would filter out from a trial. You may wonder how truthful the individual would be, but the chances are greater to have more honesty, since it does not involve court punishment. Also, an experienced facilitator is trained to get greater openness.

It may be possible to get some financial restitution, where the individual who committed the crime helps pay back for losses. But beware of making this your only expectation. Sometimes an apology can be a way of making amends, but even this may not be forthcoming.

Restorative Justice is not for everyone, but it can be invaluable in some situations, such as those in which the court system is unable to proceed in your case. Of course you should not feel it reflects badly on you if this is not something that interests you.

I found out about Restorative Justice through a grief group meeting and thought it an excellent idea. The killer died before going to trial, and there was no trial for his wife (who was indicted as an accessory after the fact) after Hurricane Katrina destroyed evidence. I then turned to Restorative Justice using a local group, now part of Community Mediation Services.

I found this to be tougher and more emotional work than I imagined. However, despite my resistance to it, there was information I’m convinced I would never have received otherwise. I was able to get more in-depth information about the killer’s mindset and problems, things that I had just been guessing at before going through this process.

Going through the justice system often left me feeling frustrated and pessimistic. Restorative Justice changed this, since I chose the questions and could respond to the answers. Some of my friends thought I was crazy to talk to this woman, but others understood my interest. But the bottom line is that I did this for myself. In some ways it was a movement toward bringing forgiveness into view, though I am still working on it.

In the intervening years, the killer’s wife has declined further contact with the facilitator, with her attorney saying she wanted to put this behind her. It is infuriating but anything coerced will be fruitless. Only time will tell if she will come to a more open place, and then I wonder how much she will choose to recall. Still, I have absolutely no regrets in having entered this process, as it afforded a human connection that would never have happened otherwise. - Rose

LOUISIANA VICTIMS' BILL OF RIGHTS - full text here: Louisiana Laws - Louisiana State Legislature

Victims or designated family members of victims of certain crimes are entitled to certain rights under Louisiana's Crime Victim Bill of Rights.

You must file a Victim Notice and Registration Form with the NOPD, Clerk of Court, or DA’s office to activate these rights:

• The right to receive emergency social or medical services as soon as possible.

• The right to be notified of a defendant's arrest, release on recognizance, posting of bond, release pending charges being filed, release due to rejection of charges by the District Attorney, escape, or re-apprehension.

• The right to requests for assistance by judicial and law enforcement agencies in informing employers that prosecution of the case may necessitate absence from work.

• The right to reasonable notice and to be present during all critical stages of pre-conviction and post-conviction proceedings, including the sentencing hearing.

• The right to be notified of scheduling changes of criminal justice proceedings.

• The right to consult with the prosecution prior to the trial, and to meet and discuss sentencing options with the prosecution before the final disposition of the case.

• The right to refuse to be interviewed by the accused or a representative of the accused.

• The right to review and comment upon the Pre-sentence Investigation Report prior to imposition of sentencing, and the right to be notified of the minimum and maximum sentence allowed by law.

• The right to make a written or oral victim impact statement.

• The right to seek restitution (court-ordered payment from someone who has been convicted) and crime victim reparations (for certain expenses from the state program) when eligible.

• The right to a reasonably prompt conclusion to the case.

• The right to protection from intimidation and harm.

• The right to a secure waiting area during court proceedings.

As a witness, you have many of the same rights as the victim (e.g., being provided a secure waiting area during court proceedings, which does not require close contact with the defendant and their family or friends).

For a more complete explanation of your rights, visit this site: Louisiana Laws - Louisiana State Legislature

FEDERAL RIGHTS OF CRIME VICTIMS

The Justice for All Act of 2004 provides crime victims with the following rights in Federal Courts - while still protecting the rights of defendants.

• The right to be reasonably protected from the accused.

• The right to reasonable, accurate, and timely notice of any public court proceeding or any parole proceeding involving the crime, or of any release or escape of the accused.

• The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.

• The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.

• The reasonable right to confer with the attorney for the government in the case, e.g. the right to know why the case did not proceed.

• The right to full and timely restitution as provided in the law.

• The right to proceedings free from unreasonable delay.

• The right to be treated with fairness and with respect for the dignity and privacy.