In 2011, lawyers for the Innocence Project New Orleans discovered new evidence that they believed showed Jerome Morgan was wrongfully convicted of a 1993 shooting, when he was a teenager. The evidence included a police log challenging the prosecution’s timeline of events, along with a recantation from one prosecution’s key eyewitnesses, who initially claimed Morgan was the shooter.
But it would take over two years before a judge would be able to make a determination on the merits of that evidence.
The reason for the delay was a procedural objection filed by then-District Attorney Leon Cannizzaro’s office. Cannizzaro argued that Morgan’s petition for relief hadn’t been filed in a timely manner and that Morgan’s attorneys couldn’t prove that the evidence was, in fact, newly discovered.
Those arguments were rejected by the district court. But prosecutors appealed to the 4th Circuit Court of Appeal, and when they rejected them, they appealed again to the Louisiana Supreme Court, who also rejected them.
“Two, three years that held me up,” Morgan said in a recent interview with The Lens. “All throughout… procedural barriers are in place to obscure the injustices that are committed against the convicted.”
Eventually, when the actual merits of the new evidence were heard in 2013 — which by that time also included the recantation of the second prosecution witness — a judge ruled that it was enough to warrant a new trial. That decision was upheld by the appellate court and the Louisiana Supreme Court as well.
In 2014, Jerome Morgan walked out of prison, and in 2016 the DA dropped all charges against him.
For defendants like Morgan who attempt to challenge their convictions from prison, procedural hurdles — meant to provide some content and time limitations on what claims can be brought after a conviction has been finalized — can obstruct and delay the ability to get the merits of their claims heard. And the DA’s office under Cannizzaro, according to post-conviction attorneys, was an outlier in the state in terms of how frequently and persistently they invoked procedural objections to block post-conviction claims.
But a new interim policy put into place by Ben Cohen, the chief of appeals under DA Jason Williams — who took office in January — discourages prosecutors to raise procedural objections to defendant’s application for post conviction relief, “particularly where substantive review of claims promotes resolution, finality, or justice.”
The policy states that prosecutors should not raise procedural objections if a defendant is making a claim of actual innocence or racial discrimination, and that approval will be needed to raise an objection if the reasons for the objection could be “credibly alleged deficiencies” in public services like the “prison, mail or court processing, or indigent defense services.” It also says that if a defendant is making a claim that the DA’s office withheld evidence favorable to the defense — known as Brady material — that prosecutors must review the case files and make sure that there is no such material.
“Compliance with procedural rules promotes finality and prevents endless of costly litigation,” the policy reads. “However, the State and the citizens of New Orleans have an interest in the fair and substantive adjudication of constitutional claims. The District Attorney’s office has an interest in addressing claims of wrongful conviction, race discrimination, and systemic injustice.”
In an email, Cohen said that the new policy was designed to make sure that procedural objections were not being used by the office in a way that could get in the way of taking a look at substantive issues in a convicted persons case.
“We don’t want a person guilty of a crime to win based on a technicality nor do we want an innocent person to be convicted based on a technicality,” Cohen said. “Just because we can uphold a conviction on a technicality for reasons like the defendant not actually signing the pleading, or because it was mailed two days late, doesn’t mean we should do it. This is about delivering justice – real justice.”
‘It offends bedrock notions of fair play’
Cohen said the policy is what the office is currently using, but it is still just an interim, not permanent, policy for now. Williams will ultimately decide “if or when it is an official policy.” The previous administration, he said, did not have a written policy on when to invoke procedural objections, and said the way the office utilized them were both unjust and legally ineffective.
Richard Davis, legal director for the Innocence Project New Orleans, said that Morgan’s case was representative of the prior administration’s use of procedural objections to delay and obstruct the litigation of substantive claims of innocence.
“The prior regime would always raise procedural bars, regardless if that was actually any credible argument for there application,” Davis said. “Even if they lost a process of going through procedure bars would delay a case for a year or two. For an innocent person that would be a year or two in prison.”
He also said Cannizzaro’s administration was an outlier in the state in terms of how frequently they raised procedural objections to claims, and the fact that they nearly always appealed rulings that found their procedural objections were without merit.
“Procedural bars were regularly and persistently raised to prevent full adjudication of substantive claims,” Cohen said. “They were waived on an ad hoc basis based upon circumstances that appear unrelated to the merits of the case. This type of arbitrariness not only undermines confidence in the administration of justice, the ad hoc invocation of procedural bars may result in federal courts rejecting them.”
He said that they were not able to find any other DA’s written policy with regards to procedural bars throughout the state. A representative from the Louisiana District Attorneys Association was not available to discuss the new interim policy in New Orleans.
The policy also acknowledges the difficulty defendants have attempting to litigate their cases from behind bars.
“It offends bedrock notions of fair play and due process to force an incarcerated defendant to work at prison wages, or sell his blood, in order to secure withheld documents that prove his innocence, only to have a timeliness bar deprive him of any consideration of his application for freedom,” the policy reads.
“Under the prior administration, this office would charge inmates per page for copies of their file,” Cohen said. “Inmates working for seven to 70 cents an hour would have to figure out how to generate sufficient funds to secure their files, not knowing which parts were useful or which contained documents they already had.”
He said that inmates “ended up taking dangerous jobs at the Rodeo” — referring to the Angola Prison Rodeo held each year at the Louisiana State Penitentiary — “and selling their blood plasma in order to pay for their files.”
Davis said that the policy was encouraging, and he hoped it would mean that some convicted defendants would be spared the delays that litigation of procedural objections can cause. He also said it was significant that the office was promising to review evidence to make sure everything had been turned over.
The policy is one of several steps the new DA’s office has taken that signal a willingness to address past convictions that the previous administration was taking steps to conserve. Williams has set up a Civil Rights Division headed by former director of the Innocence Project New Orleans, Emily Maw, that will review wrongful convictions as well as excessive sentences.
And the office has already begun reviewing convictions that were secured by non-unanimous jury convictions. Last month prosecutors joined with defense attorney’s in vacating 22 convictions based on split-jury verdicts. After taking plea deals, many of those individuals will walk free.