Supreme Court. Seven justices elected by districts for 10-year terms. Meets in New Orleans. Exclusive original jurisdiction in bar disciplinary actions. Direct appeals from district courts if a law or ordinance is declared unconstitutional; otherwise through Courts of Appeal, except for death penalty appeals.

Circuit Courts of Appeal. Five (Baton Rouge, Shreveport, Lake Charles, New Orleans, Gretna) with 53 judges elected for 10-year terms. Usually hears appeals in three judge panels, occasionally in five judge panels or en banc if a three judge panel cannot agree.

District Courts. Forty-one judicial districts, about 200 judges (plus 11 appointed commissioners) elected for six-year terms. The basic trial courts. Exclusive original jurisdiction:
felonies
titles to immovable property
civil and political rights
public office-holding
probate and succession
suits against the state or cities
corporation and partnership liquidation or receivership
Criminal appeals from City and Parish Courts; all appeals from Mayors, Justice of the Peace, Municipal and Traffic Courts.

Limited (often called lower or local courts) Courts:
City Courts. Fifty City Courts, about 60 judges, mostly part-time, elected to six-year terms. Traffic violations, misdemeanors, small claims to $750, civil suits to $10,000. In cities above 5,000 population.
Parish Courts. Two in Jefferson and one in Ascension.
Municipal Court of New Orleans. Four part-time judges; ordinance violations.
Traffic Court of New Orleans. Four part-time judges; traffic violations.
Justice of the Peace Courts. In wards where there is no City Court, 384 part-time justices, elected to four-year terms. Good moral character, able to read and write English, a landowner. Jurisdiction: issue warrants, set bail in misdemeanors and relative felonies, peace bonds, small civil suits.
Mayors Court. In smaller municipalities, about 250 mayors or appointed magistrates (who must be attorneys). Municipal ordinance violations; maximum fine of $200 and 30 days in jail, except for OWI ($500/60 days). Authority to issue warrants. Elected to four-year terms.
Family Court. East Baton Rouge only.
Juvenile Court. Orleans, Jefferson and Caddo.
Commissioners and magistrates appointed to hear preliminary proceedings in many district courts; setting bail, appointing counsel, holding hearings.

Judiciary Commission. Nine members to investigate instances of judicial misconduct and improper performance of duties. Recommends action to Louisiana Supreme Court. 

Judicial Administrator's office under Supreme Court to gather court statistics and do research; local administrators found in several district and city courts.

The prosecutor in the state court systems: usually called district attorney, county attorney or state's attorney. Popularly elected for a four or six year term; usually a politically active attorney with prior prosecutorial or judicial experience. Said to be "the most powerful official in the criminal courts." Why? DA's power lies in:
power to decide charges
power to decline or dismiss charges for a reason (nol pros)
power to determine outcome through plea negotiation
representation of legal system to the public
coordinating role among other legal participants--police, victims and witnesses, defendants, defense counsel, judges
influence on legislation

DAs may be career prosecutors or political climbers using the position as a step upward; must be politically active and popular to retain office.
Day to day decisions made by assistant DAs, possibly full-time but more part-time in most places. Usually younger attorney learning the trade, building a practice and interested in politics. A good way to get trial experience and build a practice. Many DAs have a few basic policies but leave most decision-making to assistants. Usually a few senior assistants who handle important, well-publicized felony cases.
The prosecutor works from a position of strength; most defendants are guilty, and he can prove them so if he needs to. But there are too many cases to be tried, and he bargains to get guilty pleas, avoid trials and keep the cases flowing along.

What is the prosecutor's obligation: to protect society or see justice done? To convict the guilty or see that a balance is maintained?

The defense counsel's role is more narrowly defined: to protect his client's rights, to counsel and advise, to challenge the state. Most criminal defense means indigent defense--65% to 90% of felony defendants are indigent, depending on particular location. Two important legal decisions in indigent defense:
Gideon v. Wainwright (1963)--appointed counsel for indigent felons
Argersinger v. Hamlin (1972)--appointed counsel when jail is likely, including misdemeanors

Three basic methods of providing indigent defense:
public defender offices. Full-time attorneys who only handle criminal defense cases (sometimes 300 to 400 at a time). Found in most large metropolitan counties; representing largest number of defendants.
appointed counsel systems. Either a voluntary list or involuntary appointments as necessary. Paid by the hour or by the case, or not at all. Mostly in smaller counties or rural areas.
contract systems. More popular recently. County/state contract with several lawyers or firms to handle a certain number of cases or put in a certain number of hours per week on indigent cases.

Common criticisms of indigent defenders: less-skilled, paid by government, don't take cases seriously, overlook the possibility of innocence. Not necessarily so, though criminal practitioners do become bureaucratically interdependent on assistant DAs to get a good plea and get their clients off as lightly as possible.

Always a few popular attorneys available for paying clients; often attorneys with prior indigent defense or prosecutorial experience.

Defense counsel: fighting a perpetually losing battle.
 

Pre-trial motions are applications for court orders or rulings filed by the prosecutor and defense counsel during the time between arrest and trial. These motions are used to gain advantage, to attack elements of the opposition's case, to delay legal proceedings or to learn as much as possible about the evidence to be presented by the opposition.

The prosecutor is in an initial position of strength; he usually has a guilty defendant and knows all the evidence. Defense counsel knows only what the defendant has told him (which is often slanted, mistaken or an outright lie). Defense counsel maneuvers to find out more about the prosecution's case and to be sure the defendant's constitutional rights are protected.
Discovery--the legal name for learning the contents of your opponent's case. Discovery can be "full" (as in both sides laying out their cases in a pre-trial hearing) or "limited" (in which each side must give the other only what the court requires, which must be asked for in a formal motion).

Important pre-trial motions in Louisiana:
motion for a bill of particulars: requesting specifics about the nature and cause of the charge against the defendant
motion to quash: alleging such grounds as double jeopardy, expiration of statute of limitations, no valid offense charged, or other technical grounds
motion for a speedy trial: bill of information or indictment within 60 days/150 days (in custody or not in custody); arraignment within 30 days after; trial within 120/180 days (in custody or not in custody) after filing of motion
motion for continuance: asking for a postponement of trial date for cause 
motions for severance and consolidation: in a trial with multiple defendants, asking that they be split up or joined together
motions for discovery: by defendant or state. By defendant, to look at statements by the defendant, defendant's prior criminal record, documents and tangible evidence, test results and codefendant's statements. By state, to look at documents and tangible evidence, test results, mental condition, or alibi
motion for a change of venue: to move the trial when a fair and impartial trial cannot be held in the jurisdiction, usually because of pre-trial publicity
motion to recuse: to remove a judge or district attorney from a case, for bias
motion for dismissal: discretionary, filed by prosecutor
motion to suppress: defendant acts to exclude evidence on the grounds that it was unconstitutionally obtained; often results in "swearing matches" between police and defendant about circumstances

Motions must generally be filed within a certain time after the arraignment; the court rules after hearings on the motions. 
 
 

The jury: a group of citizens who decide the guilt of accused persons. Derived from Greek practices that emerged about 500 B.C., featuring dicasts, a large group (501 to 6,000) who deliberated criminals' guilt and fate. Modern jury developed in England after William the Conqueror.

English juries at first combined grand jury and petit jury (or trial jury) functions. A group of knowledgeable local citizens met to accuse criminals of crimes, under oath, and then rendered judgment after hearing sworn testimony. Magna Carta (1215) provides for jury involvement: "lawful judgment of his peers."

Jury later divided (13th century) into grand jury (accusatory and investigative functions) and trial jury (hearing evidence and deciding guilt, at one time imposing sentence as well). The jury often said to "humanize the law," departing from the strict application of the law to decide in favor of deserving criminals (or sometimes against people who ought to be punished, even if they're not guilty).

In colonial America the jury both a sensible fact-finding device and a protection against despotic governments. Right to a jury trial provided in Article III, Section 2 of the U.S. Constitution and in the Sixth Amendment. Juries expected to be "political," infusing social values into the administration of justice.

Juries not used as much today and more controlled by prosecutors and judges; still used more in the U.S. than in any foreign country. Most other countries do not use juries at all (judges only) or use lay jurors sitting together with judges to decide verdicts. 

The American jury today. At least six to as many as 12 members. Right to a jury trial (Duncan v. Louisiana, 1968) under 14th Amendment, restricted to any cases involving the potential of six months or more imprisonment by Baldwin v. New York (1970). No right to a jury trial in misdemeanors or in the juvenile courts (though states can provide these if they wish).

Juries determine guilt only, except in capital cases when they must also decide the punishment--life imprisonment or the death penalty. Seven states still allow the jury some involvement in determining the sentence, usually at the request of the defendant.

Key terms relating to the jury:
master wheel--the names of prospective jurors, compiled from voter registration lists, driver's licenses, utility customers, and other lists of names.
venire--the group of people who assemble at the courthouse prepared to become jurors, after exclusions are granted.
panel--a group of potential jurors for a particular case.
voir dire--meaning "to speak the truth," the questioning of potential jurors under oath, done by attorneys or in the federal courts by the judge, using questions submitted by attorneys.
challenge for cause--used to request removal of a potential juror for bias, either specific or non-specific. Unlimited number of challenges.
peremptory challenge--used to exclude potential jurors without explanation. Number limited by law.
sequestration--the isolation of jurors from outside influences, during deliberation or in capital cases from opening statements onward.
directed verdict--a motion by defense counsel asking the court to acquit the defendant after the prosecution's case is presented; routinely denied, occasionally granted.
instructions--directions given by the judge to the jury explaining how they should go about deciding the case; may include a summary of the legal questions, a list of included offenses and penalties, and an explanation of the burden of proof and other legal terms.
deliberation--the jury meeting behind closed doors to discuss the evidence and work toward a verdict.
foreman (or foreperson)--the persons the jurors select to present their verdict to the court and sign any required documents.
verdict--agreement among the jurors legally sufficient to report a decision ending the case. Most states require unanimous verdicts in criminal trials (6 of 6, or 12 of 12), but 34 states allow non-unanimous verdicts in civil cases. Five states (Louisiana, Texas, Oklahoma, Oregon, Montana) allow non-unanimous criminal verdicts; in Louisiana, 10 of 12 must agree, or 6 of 6 in relative felony trials. In capital cases, 12 of 12 for conviction of first-degree murder, 12 of 12 for death penalty.
hung jury--a deadlocked jury unable to reach a verdict; results in a mistrial, without double jeopardy.

Recent issues affecting juries:
increasing length of jury selection, and of complex trials involving prolonged jury service.
"a jury of one's peers"--what does this mean in terms of race, sex, class, religion or other possible biases?
media influences--how do the courts escape pre-trial publicity in celebrated cases
scientific jury selection--using pre-trial sampling and jury psychologists to assist the defense (or occasionally the prosecution) in picking jurors in important cases.

For an excellent book on the jury see:
 James P. Levine. Juries and Politics. Pacific Grove, CA: Brooks/Cole Publishing Co., 1992.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

For the convicted defendant, a crucial decision. Common sentences:

traffic and misdemeanors--fine, suspended sentence, jail term

felonies--probation, prison term

Other sentencing options:

restitution to victim

community service

substance abuse counselling

driver improvement training

house arrest or electronic monitoring

halfway house

capital punishment (250 to 300 sentences a year)

The judge does the sentencing, except for jury sentencing in capital cases (optional in a few other states). Sentenced may be agreed to in plea bargaining, or the judge may order a pre-sentence investigation report (PSI), done by the probation officer. A PSI is a comprehensive background investigation of the defendant.

Problems in sentencing. What is the purpose of the sentence: retribution, deterrence, incapacitation, rehabilitation.
 

Recent criticisms of sentencing:

disparity in sentencing--wide variation in sentences given to defendants who have committed similar crimes.

inequitable statues--differences in penalties from one place to another.

lack of sentencing criteria--no formal guidelines for judges to follow.

too much judicial discretion.
 

Types of sentences:

indeterminate--once most common; an open-ended sentence (like one to 15 years), intended to encourage rehabilitation.

determinate--fixed period of years (like six years); more common now.

mandatory--requires a prison term; like many violent crimes, gun crimes and drug distribution offenses now.

presumptive--narrowed range of choices; lessening discretion.

consecutive--one sentence to be served after the completion of another.

concurrent--two or more sentences served at the same time.

Other variables complicating sentencing: good time, parole, mandatory release, clemency.
 

Recent and proposed changes in sentencing (sometimes called "sentencing reforms").

sentencing councils--judges reviewing sentences as a group.

sentencing institutes--training in sentencing for judges.

appellate review--appeals courts authorized to change sentences up or down (now generally allowed to reduce sentences only, in half the states).

written explanations required by judges.

sentencing guidelines--written guidelines (usually represented in chart form) for judges to follow.

flat sentences. Same punishment for all offenders.

mandatory minimum sentences--required prison term for certain offenses

three strikes laws--aimed at some categories of habitual offenders

Basic question: Should punishment fit the crime or the criminal?
 

Created under Article III of Constitution. Unclear original purpose: settling interstate disputes. The Jay and Ellsworth Courts: an inauspicious beginning. No cases the first two years.
 

Legal Jurisdiction

Exclusive original

Disputes between states

Suits against foreign parties

Concurrent jurisdiction (with federal district courts)

suits by foreign parties

disputes between federal government and a state

disputes between a state and citizens of another state

Appellate

from U.S. Courts of Appeal (60%+)

from state Supreme Courts (30%+)

from U.S. District and other federal courts (5-8%)
 

Three ways to obtain Supreme Court review:

certification--rarely used, a question of law in a civil or criminal case in U.S. Appeals Court; judge asks for instructions on a matter of law.

appeal--by right; substantial federal question involved. Cases "decided on the merits;" precedent setting.

certiorari--no right to review. A discretionary writ authorized by Congress in 1925. Not precedent setting; the Court simply declines to intervene and lets the lower court's decision stand.
 

Discretion in accepting cases: the "rule of four," meaning four justices must agree to accept a case. Over 5,000 petitions filed each term (October to June), less than 200 accepted for oral arguments. Ways of making decisions:

per curiam--short written opinions, almost always affirming lower courts.

full opinions--oral arguments, with written majority and dissenting opinions. More than half result in modifications or reversals.
 

Famous Courts:

Marshall Court (1801-1835)--"the greatest court in history." In Marbury v. Madison, established principle of judicial review, the power to review laws for their constitutionality. Gradually extended federal power over the states.

Hughes Court (1930-1941)--"nine old men," Roosevelt threatening to pack the court. Reversal of positions by Hughes and Roberts; court size eventually fixed at nine.

Warren Court (1953-1969)--political and social activism. Integration, re-apportionment, birth control, school prayer ban; application of Bill of Rights to states (the "incorporation" doctrine) very important in setting procedural standards for criminal justice.

Burger Court (1969-1986)--a more politically conservative court, not continuing the expansion of government supervision.

Rehnquist Court (1986-present)--even more conservative ideologically, backing away from some of the more liberal rulings of earlier courts and returning more control to state courts.