IN THE SUPREME COURT OF THE
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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Application from the 50th JDC, No. ______
Hon. J. Frank Death Presiding

PETITION FOR SUPERVISORY WRITS
TO VACATE ILLEGAL TRIAL DATE AND
TO ALLOW A REASONABLE TIME TO PREPARE FOR TRIAL

COMES NOW, JOHN CLIENT, by counsel, and petitions this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution, and other law set out below, to issue supervisory writs, to vacate the trial date that was illegally set, or to order a continuance of this capital prosecution from October 18, 1993, so that the defense shall have reasonable time to prepare for trial.
A. STATEMENT OF THE CASE
Mr. CLIENT is indicted for first degree murder. See Exhibit A. The state has announced its intention to seek the death penalty. The trial date has been set for October 18, 1993.
B. STATEMENT OF FACTS
Owing to the difficulties the Public Defender (P.D.) Office faces in PEINE DE MORT Parish, NOTHING has been done to ready this capital case for trial. Pre-trial motions have neither been filed nor heard. No funds have been sought or allocated for any defense experts. The chief P.D. has NEVER visited the client. The other P.D. assigned to the case has spoken with Mr. CLIENT three times since February, without discussing any element of mitigation with him. If this case goes to trial on October 18, 1993, it will simply be a waste of scarce judicial resources.
Unfortunately for everyone concerned, there has been a great deal of capital litigation going on in PEINE DE MORT Parish. Three death sentences have been imposed in the last few months in very marginal cases, and several capital prosecutions are pending as of this writing. The pressure on the Public Defender's Office has been such that one lawyer sought to kill himself when unreasonably denied a continuance motion in a capital case. The lawyer narrowly escaped with his own life, and his client--with lead trial counsel in the hospital--was allowed a continuance.
It must be said that members of the PEINE DE MORT Parish District Attorney's Office seem to think that suicide attempts among the criminal defense bar--that come terrifyingly close to succeeding--are just a machiavellian effort to delay the case. Indeed, the D.A.'s office, which controls the docket in the Parish, seems intent on driving all the members of the Public Defender's Office to self-destruction by setting totally unrealistic trial dates.
Due not to negligence but overwork, the Public Defenders have filed just three pleadings. No motions to suppress have been filed or litigated. No motions for funds have been made. Nothing. And this is a capital case. In pressing this case to trial, the D.A.'s Office is apparently asking to get reversed after a "farce and mockery" of a trial. It would make more judicial and fiscal sense to allow deliberate respect for Mr. CLIENT's rights.
C. SUMMARY OF THE ARGUMENT
This is a capital case where there has been no pre-trial litigation, the defense has been given no funds, and there has been no preparation for trial. The legal issue is rather simple: Should this Court provide Mr. CLIENT with the time to prepare his case now, or should this Court allow a vast waste of funds prior to reversing the subsequent conviction and ordering a new trial.
Before reaching the facts that mandate a continuance where a man's life is at stake, it is important to understand the pattern by which the Fiftieth JDC has violated its own rules to reach this entirely unreasonable trial date.
On September 14, 1993, the District Attorney moved ex parte to have this case set for October 18. Undersigned counsel knew nothing about this until some days later, when the notice was received. Mr. CLIENT moved to continue the trial, on the grounds that the case had been improperly set, and the overworked Public Defender's Office had done nothing on the case--filing only three form motions. See Exhibit F. These three motions are as follows: A form Motion for Discovery; a form Motion for a Bill of Particulars; and a form Motion for a Competency Hearing that should never have been filed. The latter motion--filed without any investigation, and not supported by any defense evidence--is precisely the type of mental state litigation that was held to be ineffective by the Fifth Circuit in another Louisiana capital case back for retrial. Loyd v. Whitley, 977 F.2d 149 (5th Cir. 1992) (counsel ineffective for relying on sanity commission psychiatrists rather than obtaining independent evaluations).
The manner in which the trial date has been set and upheld has not only been unreasonable--in light of the lack of defense preparation--but also in violation of pretty much every local court rule governing criminal settings. On September 10, 1993, the Fiftieth JDC judges entered an order that rendered one judge responsible for a particular capital case, and provided that judge should "have exclusive jurisdiction, except for arraignment, of the [capital] case assigned." See Exhibit D (Order of September 10, 1993). On the same day, Hon. J. Frank DEATH, Jr., was allotted the case against Mr. CLIENT.
Although Judge DEATH now had exclusive jurisdiction over the case, on September 14, 1993--without notice to the defense--the prosecution moved ex parte before Judge Al DANTE to have the trial date set for October 18, 1993. Judge DANTE, acting without jurisdiction, set the trial for that date. See Exhibit E.
A hearing was needed on the defense motion to vacate this trial date and for a continuance. Undersigned counsel called the Office of the D.A. to ask that the case be set down for a hearing, and the prosecutor suggested October 13. Apparently no formal notice was ever sent, although such notice is required by the Fiftieth JDC rules: "When a hearing is fixed . . . the Clerk shall immediately notify all counsel of record in the matter of such fixing by appropriate written notice. . . ." See Fiftieth Judicial District Rule 9 ("Notice of Hearings"). Consequently, neither of the Public Defender attorneys who have been on the case for the longest heard about the hearing until it was over.
In the meantime, the case is allegedly going to trial next Monday. So are many other cases. In order to give the defense fair notice of the cases that will actually go to trial, and to comply with State v. Simpson, 551 So. 2d 1303 (La. 1989), the local rules require that "[t]he State's designation of order of trials shall be filed with the Clerk of Court one (1) week before the trials. . . ." See Exhibit B. Such a designation has been filed, but it does not even reflect Mr. CLIENT's case, let alone rank it as one of the first ones to be tried. See Exhibit C.
Rules are not, in capital cases, made to be broken. It is difficult to discuss the manner in which Mr. CLIENT's rights are being flouted in temperate terms. Where life is at stake, it should be a matter of course that one should provide fair and adequate notice to the defense, a fair and adequate time for preparation, and a fair and adequate trial. This is all the defense asks.
Even had the state followed its own procedural rules in setting the date, it is clear that a continuance should still be granted. Nothing has been done to prepare this case for trial. The head of the P.D.'s office has never, EVER visited Mr. CLIENT. The second P.D. on the case has been to see him two or three times since February, and never discussed any potentially mitigating aspect of Mr. CLIENT's life. It is clear that if the trial goes forward on October 18 Mr. CLIENT will have nothing but a warm body sitting next to him. See United States v. Otero, 848 F.2d 835, 837, 839 (7th Cir. 1988) (a criminal "defendant is entitled to more than just a warm body standing next to him during criminal process").
D. THE TRIAL DATE MUST BE UPSET SINCE THE LOWER COURT FAILED EVEN TO FOLLOW ITS OWN RULES: THE DATE WAS ENTERED IN VIOLATION OF THE FIFTIETH JDC ORDER OF SEPTEMBER 10, 1993, AND WITHOUT THE NOTICE REQUIRED BY THE ORDER OF FEBRUARY 4, 1993

"An element of due process is the opportunity to defend a criminal prosecution in an orderly proceeding." State v. Simpson, 551 So. 2d at 1305 (emphasis in original). It is particularly important in a capital prosecution that "any decision . . . be, and appear to be, based on reason rather than caprice. . . ." Beck v. Alabama, 447 U.S. 625, 637-38, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980) (quoting Gardner v. Florida, 430 U.S. 349, 357-58, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977)). Indeed, orders and rules are entered for a purpose--"adequate notice is a fundamental element of due process. . . ." Id., 551 So. 2d at 1305; accord Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969). When a court enacts rules, and then fails to follow them, we are faced with precisely the type of arbitrary lawlessness that the very judicial system is designed to cure.
In Simpson, the Court held that "the criminal docket for a particular day must indicate the order in which cases are to be called for trial." Id. at 1305. In light of challenges to the PEINE DE MORT Parish system, see State v. Kimmel, 571 So. 2d 208 (La. App. 3d Cir. 1990), State v. Larson, 579 So. 2d 1050 (La. App. 3d Cir. 1991), a rule was ordained requiring published notice of the order of cases. In this case, the rule was not followed and the docket does not even reflect the pendency of Mr. CLIENT's trial--for the simple reason that nobody expected the lower court to deny Mr. CLIENT's motion for a continuance.
Indeed, the lower court did not even follow its own rules in setting the date, since Judge DEATH had "exclusive jurisdiction, except for arraignment, of the [capital] case assigned." See Exhibit D (Order of September 10, 1993). Judge DANTE could not have set the trial date.
Finally, defense counsel was neither notified of the hearing, nor allowed to be present. It seems to be par for the course for matters to be dealt with ex parte in capital cases in PEINE DE MORT Parish, but it is simply not the way that this Court should sanction the practice of law. A lawyer should not "[c]ommunicate ex parte with [a judge] except as permitted by law." See Rules of Professional Conduct, Section 3.5(b). No rule of law allows for such ex parte communications. They should not be permitted.
E. THE NEED FOR A CONTINUANCE IS OVERRIDING IN THIS CASE

A continuance should have been granted in this case to allow the defense to prepare and file pre-trial motions, to allow such motions to be heard, and to allow proper preparation for trial. Currently, there have been no pre-trial motions, there has been no provision of funds for defense experts, and there has been no preparation for trial.
It is not as if the accused is doing anything more than asserting his constitutional rights when asking for a reasonable continuance. As the United States Supreme Court has stated:
[A] myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.

Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 844, 11 L. Ed. 2d 921 (1964) (citing Chandler v. Fretag, 348 U.S. 3, 75 S. Ct. 1, 99 L. Ed. 4 (1954)); accord United States ex rel. Martinez v. Thomas, 526 F.2d 750, 755 (2d Cir. 1975). The "denial of a motion for continuance is fundamentally unfair when it results in a denial of a defendant's constitutional rights." Wade v. Armontrout, 798 F.2d 304, 307 (8th Cir. 1986).
Both the Code and the case law make clear that defense counsel in a criminal case must be given a reasonable time to prepare the defendant's defense. See La. C.Cr.P. Art. 707 (motion for continuance to be granted when in "the interest of justice"); Art. 709; and Art. 712 (motion for continuance to be granted if "there is good ground"). The Court has held that any denial of a motion for continuance will be reversed if the defendant should have been granted a continuance. State v. Parsley, 369 So. 2d 1292 (La. 1979).
It is particularly significant that this is a capital case. "Penalties in capital cases ultimately will turn on mitigating evidence and on the advocate's ability to marshal and present that evidence." Goodpaster, The Adversary System, Advocacy, and Effective Assistance of Counsel in Criminal Cases, 14 N.Y.U. Rev. L. & Social Change 59, 83-85 (1986). "Without adequate time to prepare and present mitigating evidence, the procedural safeguards developed to protect the defendant's constitutional rights in a capital sentencing hearing are meaningless." Note, A Capital Defendant's Right to a Continuance, 64 N.Y.U. L. Rev. 579, 582 (1989).
Trial courts should conduct sensitive balancing tests in determining whether a defendant's motion to continue outweighs the public's interest in the speedy administration of justice. State v. Roberts, 569 So. 2d 671, 676 (La. App. 2d Cir. 1990). In this case, the trial court did not conduct any kind of balancing. Judge DEATH seemed to think that because the I.D.B. had secured assistance for the overworked P.D.'s office, the P.D.'s were trying to control his docket. The lower court was unmoved by the notion that Mr. CLIENT's constitutional rights were being forfeited by this "myopic insistence upon expeditiousness in the face of a justifiable request for delay."
Indeed, counsel will clearly be ineffective in this case if a continuance is not allowed. See Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (counsel ineffective where he expressed no interest in judge's offer of continuance to secure mental health records); Code v. Montgomery, 799 F.2d 1481, 1485 (11th Cir. 1986) ("failure to move for a continuance was both professionally deficient and prejudicial, and . . . abridged [appellant's] sixth amendment right[]" to effective counsel). Overall, from the facts set forth below, it is clear that the interests of justice overwhelmingly militate in favor of a continuance.
i. Nothing has been done by the P.D.'s Office to prepare this capital case for trial
Over the time that the P.D.'s office has been on the case, nothing has been done to prepare for trial in this case. The head of the P.D.'s office has never, ever visited Mr. CLIENT. The second P.D. on the case has been to see him two or three times, and never discussed any potentially mitigating aspect of Mr. CLIENT's life.
This is a very complicated capital case. Capital motions are critical to the preservation of the very life of the accused. There are systemic matters that have to be litigated to make the justice system appear to be fair to the accused. No motion to suppress has been filed, although there are clearly some that ought to be filed in light of the state's reply to the Bill of Particulars. The P.D.'s office has taken no effective steps to prepare to litigate any pre-trial matters.
If Mr. CLIENT is therefore denied his right to the effective litigation of these issues, it will be solely as a result of ineffective assistance of counsel. See, e.g., Goodwin v. Balkcom, 684 F.2d 794 (11th Cir. 1982) (ineffective assistance found where counsel failed to investigate and raise a challenge to the petit jury selection system, and litigate other motions, including making any effort to raise illegality of the arrest); Holsclaw v. Smith, 822 F.2d 1041 (11th Cir. 1987) (ineffectiveness for failure to make a motion); Summit v. Blackburn, 795 F.2d 1237, 1241 (5th Cir. 1986) (same).
ii. While nothing has been done, much work must be done to prepare Mr. CLIENT's defense
One must have some sympathy in critiquing what the P.D.'s office has not done on this case since February. After all, the office has been very overworked, and has been forced to prepare for the mammoth task of defending Mr. OTHER CLIENT against capital charges. However, the issue at stake here is whether Mr. CLIENT is going to get any kind of a defense.
It cannot be stressed enough that nothing has been done in this case. As undersigned counsel showed the lower court, the defense file has virtually nothing in it. Apart from the prosecution discovery, there are two pages of notes taken at an interview with Mr. CLIENT. There is nothing else. No funds have been sought. No witnesses have been interviewed. No records have been gathered. No mitigation witnesses have been located.
One would have little idea what the case is all about by reviewing the defense file. There is a huge amount of investigation that must be done to get this case in a setting where it would be close to ready for trial. "At the heart of effective representation is the independent duty to investigate and prepare." Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir. 1982); accord Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir. 1986); Tyler v. Kemp, 755 F.2d 741 (11th Cir. 1985); Douglas v. Wainwright, 714 F.2d 1532 (11th Cir. 1983), vacated, 104 S. Ct. 3575, 82 L.Ed.2d 874 (1984), adhered to, 739 F.2d 531 (11th Cir. 1984). As the Court held in Wade v. Armontrout, 798 F.2d 304 (8th Cir. 1986):
Investigation is an essential component of the adversary process. "Because [the adversarial] testing process generally will not function properly unless counsel has done some investigation into the prosecution's case and into various defense strategies . . . 'counsel has a duty to make reasonable investigations. . . .'"

Id. at 307 (quoting Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 2589, 91 L. Ed. 2d 305 (1986) (quoting Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984))). At this point, given what has and has not been done in this case, the words of the Fifth Circuit ring true: Counsel have, to this point, "simply abdicated [their] responsibility to advocate [their] client's cause." Nealy v. Cabana, 764 F.2d 1173, 1178 (5th Cir. 1985) (emphasis in original); see also People v. LaBree, 34 N.Y.2d 257, 313 N.E.2d 730 (1974) (lack of preparation rendered trial "farce and mockery"); King v. Strickland, 714 F.2d 1481, 1490 (11th Cir. 1983), vacated, 104 S. Ct. 2651, 81 L.Ed.2d 358 (1984), adhered to, 748 F.2d 1462 (11th Cir. 1984).
The P.D.'s office has made no effort to look for any potential penalty phase evidence in this case. See Kenley v. Armontrout, 937 F.2d 1298, 1309 (8th Cir. 1991) (counsel ineffective for not producing non-statutory mitigation "[g]iven the sympathetic light in which Kenley's past behavior could have been presented, in the context of his family . . . background").
No effort has been made to secure funds for experts. As the United States Supreme Court has held, "a reality . . . [is] that . . . the assistance of a psychiatrist may well be crucial to the defendant's ability to marshall a defense." Ake v. Oklahoma, 105 S. Ct. 1087 (1985); see also State v. Carmouche, 528 So.2d 159 (La. 1988), clarifying, 527 So. 2d. 307 (La. 1988) ("[b]ecause this is a capital murder case, any reasonable request of the defendant [for expert assistance] should be granted"). In this context, the Court has made it very clear that the defense has the right to meaningful access to expert assistance. See State v. Langlois, 605 So. 2d 1155 (La. 1992) (granting pretrial writs and ordering trial court "to continue the case for a reasonable time within which to implement the purposes of this order after the money [for expert assistance] has been provided to defense counsel"); see also Supreme Court Rule X, Section 1 (a) 1. In Langlois, at least some litigation had been attempted on the need for funds. In this case, there has been no motion for experts even filed, much less granted. Thus, a continuance must be allowed to effectuate Mr. CLIENT's right to expert assistance alone.
iii. The lower court would not even consider the valid reasons why Mr. CLIENT's counsel could not be prepared for trial
It is clear that the P.D.'s office could not be prepared to represent Mr. CLIENT effectively by October 18, or even many, many months thereafter. In all good faith, then, counsel in the P.D.'s office have no chance of being ready for trial on October 18; neither could any other lawyer on the face of this planet pretend that he or she could get this case in a posture ready for trial by that date. A continuance should therefore be granted.
WHEREFORE Mr. CLIENT moves that this Court vacate the trial date and/or grant a reasonable continuance in this case.
By counsel's signature, it is certified that the facts in this writ are true and accurate to the best of counsel's knowledge and belief, and that the writ is filed in good faith, and not for the purposes of delay.
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