IN THE ORLEANS PARISH CRIMINAL DISTRICT COURT STATE OF LOUISIANA STATE OF LOUISIANA v. Docket No. 521-533 Section FREDDIE JOHNSON Judge Byron Williams Defendant FILED: DEPUTY CLERK: SECOND SUPPLEMENTAL REPLY TO THE RESPONSE TO THE SECOND MOTION FOR NEW TRIAL COMES NOW, Freddie Johnson, through undersigned counsel and pursuant to the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, Article 1, Sections the Louisiana Constitution, La. C. Cr. P. arts. 3 and 851, and other applicable law, ?les the foregoing supplemental reply to the State?s Response to the Defendant?s Second Motion for New Trial. Mr. Johnson incorporates all ?lings, arguments and exhibits previously ?led with this Court in support of his Second Motion for New Trial. RELEVANT PROCEDURAL BACKGROUND 1. On June 15, 2017, undersigned counsel ?led a Second Motion for New Trial in accordance with La. C. Cr. P. art. 853. This motion alleges that the State committed a Brady violation. Brady v. Maryland, 373 US. 83 (1963). To be exact the motion alleges that the State?s eyewitness, Terrence Watson, had an open warrant and was on two terms of probation and defacto in violation of his probations when he spoke to police in June 2014 and further that he had one Open warrant at the time he testi?ed in June 2016. None of this was disclosed to the defense prior to or during trial. 2. On July 13, 2017, the defendant ?led his ?rst Motion for Discovery requesting, among other things, information about whether the State?s witness, Terrence Watson, was a con?dential informant and whether he had been o?ered or received any money or other ?nancial bene?t for providing information in relation to this case. On September 5, 2017, the State ?led their written response to the Second Motion for New Trial and a response to the defendant?s Motion for Discovery. In their response the State contends, among other things, that the undisclosed information was not material because the victim, Charles [he..- - identi?ed the Defendant to the police, he simply refused to clearly state it in court in an attempt to exonerate his friend. Any impartial review of the testimony of the victim clearly shows a man actively seeking to thwart the prosecution of the defendant.? State?s Response to 'Def.?s Mot. for New Trial 3, Sept. 5, 2017. I. On September 5, 2017, this Court gave the defense until September 11, 2017 to ?le a written response to the State?s reply, among other motions. 2. On September 11, 2017, the defendant ?led his initial response to the State?s reply and also ?led a motion to recuse certain members of the District Attorney?s Of?ce and a second motion for discovery, requesting, among other things, information regarding any threats of arrest made against any persons involved in this case. The basis of this particular request was that the victim, Charles Bingham, testi?ed at trial that he had been threatened with arrest if he did not go to the District Attorney?s Of?ce and the fact that it had come to light that the Orleans District Attorney had been serving so-called DA subpoenas on witnesses.? 3. On November 3, 2017, the State and the defense agreed to continue the hearing for the State to ?nd out whether any DA subpoenas had been issued in this matter and to discover whether Mr. Watson was a con?dential informant. 4. On November 21, 2017, the State informed the defense it had discovered two DA subpoenas but did not have them at court. Since the State still needed time to discover whether Mr. Watson was a con?dential informant, the matter was continued to November 30, 2017. 5. On November 28, 2017, the State provided the DA subpoenas to undersigned counsel via email and further informed the defense that the New Orleans Police Department could not, for safety reasons, con?rm or deny whether Terrence Watson was or was not a con?dential informant. 6. The DA subpoenas provided to the defense on November 28, 2017, constitute further Brady evidence not previously pled because it had not been disclosed even though it was favorable to the defendant and material to the issues of guilt or sentence. State v. Ortiz, 110 So.3d 1029, 1033 ("after a conviction the prosecutor also is bound by the ethics of his office to inform the apprOpriate authority of after-acquired or other information that casts doubt upon the These DA subpoenas were not in compliance with La. C. Cr. P. art. 66 yet erroneously contained the threat of ?ne and imprisonment. See Charles Maldonado, Orleans Parish Prosecutors are Using Fake Subpoenas to Pressure Witnesses to Talk to Them, The Lens, Apr. 26, 2017, Esman v. Cannizzaro, Case No. 17-4461 (Civil District Court, Orleans Parish) correctness of the conviction,") ((quoting Imbler v. Pachtman. 424 US. 409, 427, (1976)). 7. For the sake of clarity, the defendant believes it is necessary to ?le this second supplemental motion now. RELEVANT FACTUAL BACKGROUND 8. Charles Bingham was shot in the early morning hours of June 21, 2014. Shortly after the arrest, Terrance Watson told the police that Mr. Bingham was shot by a man named Freddie. Based on this information the police developed Mr. Johnson as a suspect and showed Mr. Watson a photograph of Mr. Johnson. Mr. Watson identi?ed Mr. Johnson as the shooter. 9. Based on Mr. Watson?s identi?cation, the police made out an arrest warrant for Mr. Johnson. Mr. Johnson surrendered himself to police on June 23, 2014. 10. Sometime in July of 20 14, Louis P. Russo of the Orleans District Attorney?s Of?ce made out two unlawful subpoenas. One directed to Mr. Bingham. Exhibit A. One directed to Mr. Watson. Exhibit B. Each ?subpoena? states that the recipient is to appear at the Orleans District Attomey?s Of?ce on July 25, 2014. While each purports to be a ?subpoena? issued pursuant to La. C. Cr. P. art. 66, neither document was signed by a judge or magistrate. Notwithstanding this omission, both documents erroneously state that failure to obey the notice may result in ??ne and imprisonment.? 11. On July 22, 2014, Mr. Bingham was personally served with the unlawful subpoena made out to him. The unlawful subpoena made out to Mr. Watson does not appear to have been served on Mr. Watson. 12. On July 30, 2014, eight days after service of the unlawful subpoena, New Orleans Police Of?cer John Waterman made a phone call to Mr. Bingham and then relocated to Mr. Bingham?s house where Mr. Bingham positively identi?ed Mr. Johnson as the shooter. 2/27/15 Hearing Tr., p. 12 (?Detective Waterman contacted the victim via telephone and spoke with him brie?y over there. . . Detective Waterman relocated to the victim?s address at the time. . .) (emphasis added). 13. Importantly, this meeting was orchestrated by the District Attorney?s Of?ce and came about because of the District Attorney's unlawful subpoena. Id. at couldn?t ?nd him or get in contact with him until the of?ce was able to they really contacted or ?nd him before I was. Once I spoke to the of?ce about it, is when I was able to contact him?) 14. Mr. Bingham does testify at trial, consist with law enforcements? account, that at some point someone he believed to be a District Attorney contacted him by telephone. This person threatened Mr. Bingham with arrest if he did not come down to the District Attorney?s Of?ce. Mr. Bingham testi?ed that he complied with the request by showing up at the ?white building,? yet it is unclear when this occurs or if Waterman is the one who threatened him, Spoke to him at the white building or whether it was another state actor. Trial Tr. p. 86. 15. At trial, Mr. Bingham testi?ed, in sum and substance, that he did not know who shot him, that he felt threatened and needlessly harassed by various state actors, and recanted his prior statement and identi?cation he made to police. The State then used Mr. Bingham?s prior statement and identi?cation to impeach Mr. Bingham, among other things. Trial Tr., p. 45-46. A. THESE SO-CALLED DA SUBPOENAS ARE UNLAWFUL 16. The Louisiana Code of Criminal Procedure Article 66 provides the only mechanism for District Attorneys and the Attorney General to have witnesses appear before them at a time and place of their choosing under penalty of law, i.e. by subpoena. La. C. Cr. P. art. 66; however, the Article requires that the state prosecutor must ?rst make a written motion to the court setting forth reasonable grounds for their need for such a subpoena. If the court is satis?ed with the grounds presented it may order the clerk to issue a subpoena or subpoena duces tecum. La. Cr. Cr. P. art. A person?s failure or refusal to appear to a lawfully issued Article 66 subpoena is punishable as a contempt of court. La. C. Cr. P. art. Nowhere in the laws of Louisiana, however, are district attorneys or the Attorney General permitted to issue extrajudicial subpoenas. They must go to a neutral judicial of?cer. To be sure, if District Attorneys, and the Attorney General, were permitted to issue their own subpoenas, it would offend both the State and United States constitutions. See La. Const. Art. II, 2 (Except as otherwise provided by this constitution, no one of these branches, nor any person holding of?ce in one of them, shall exercise power belonging to either of the others). Indeed, unique to our system of govemment, the separation of powers is vital to prevent any one branch of government from overreaching its mandate lest it become the unchecked tyrant of us all. 18. Yet contrary to these well-known, bedrock principals of our constitutional democracy and the black letter of our law, the Orleans District Attorney?s Of?ce issued two so- called DA subpoenas in this case that were wholly unconstitutional and therefore unlawful. 19. There can be no question that the ?subpoenas? are unlaw?rl. While they purport to be Article 66 subpoenas carrying the very serious threat of ?ning and imprisoning citizens neither document remotely complies with the simple procedure laid out in the Code. A neutral member of the judiciary did not issue them after he or she made certain they were justi?ed. A judicial of?cer never signed them at all. In short, these unchecked and unlawful subpoenas were, and are, coercive to whomever the unwary recipient may be, repugnant to our constitution, and corrosive to our republican form of government. B. THE UNDISCLOSED UNLAWFUL SUBPOENA TO MR. BINGHAM WAS BRAD MATERIAL 20. When state actors make threats to arrest a witness if they do not share information, or promises not to arrest a witness in exchange for information, that is evidence favorable to the defense that should not be suppressed. Giglio v. United States, 405 US. 150 (1972). 21. Here, the State?s illegal threat to ?ne or imprison Mr. Bingham if he did not comply with the subpoena, needed to be disclosed to the defense. If this unlawful subpoena had been disclosed, particularly in light of all the other Brady/Napue evidence in this case, there is a reasonable probability or likelihood that the outcome would have been different. Kyles v. Whitley, 514 US. 419, 434 (1995) (?The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of con?dence?). I I. The State?s failure to provide these unlawful subpoenas was material to the suppression of the identification and statement Mr. Bingham made to police 22. This new evidence and the record makes clear that Mr. Bingham was illegally seized in violation of his Fourth Amendment Rights. This is so because he was provided an erroneous subpoena to appear at the District Attomey?s Of?ce and further told by its very words that he would be arrested if he did not report to the of?ce or contact them by a certain date and time. Had he been the defendant in this case, there is little doubt that his statement and identi?cation would have been suppressed. Taylor v. Alabama, 457 US. 687 (1982) (holding that the defendant?s confession should have been suppressed as fruits of the illegal arrest). 23. Here, Mr. Bingham either 1) failed to report to the Orleans District Attorney?s Of?ce at the time and date speci?ed on the unlawful subpoena and was then in fear that he could be arrested if he did not speak to Officer Waterman; or 2) he had reported to the District Attomey?s 2 Napue v. Illinois, 360 US. 264, 269 (1959) (?the same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected") Of?ce and was very shortly thereafter approached by Of?cer Waterman reasonably believing he had to speak to him or face arrest. Either way, Mr. Bingham was no doubt under the coercive impression that he was not free to decline to Speak to the police or the district attorney for if he did, he ran the risk of being ?ned or incarcerated. This makes his statement and identi?cation to police both involuntary and unreliable as well as the fruit of an illegal seizure. 24. While in certain other states a defendant may not have standing to assert a violation of a third party?s constitutional rights, in Louisiana a defendant may do so where he is adversely affected by a search or seizure. La. Const. Art. II, 2; State v. Owens, 453 So.2d 1202, 1205 (La. 1984) (?there is no equivalent under Louisiana constitutional law to the federal rule that one may not raise the violation of a third person?s constitutional rights?); of Samuel v. Frank, 525 F.3d 566 (7th Cir. 2008) (?nding that although the state had acted in a coercive manner in violation of the witnesses? rights, the defendant lacked standing to assert the witnesses? harm). 25. Had Mr. Johnson?s trial attorneys been armed with this information prior to or at trial they would have re-urged this Court to suppress Mr. Bingham?s out-of-court statements and identi?cation to police. Without it they were left unable to properly safeguard Mr. Johnson?s constitutional rights. Further, this information was material because the State had to introduce Mr. Bingham?s statement and identi?cation as substantive evidence in the case by impeaching him. La. C.B. art. 801(D)(1)(a) and cf La. C.E. art. While they arguably were also seeking to undermine his credibility, the crux of their impeachment was to say to the jury, in effect, ?he is lying now, he was telling the truth then.? This is important to the materiality analysis here because the State was knowingly trying to get substantive evidence, i.e. evidence introduced for the truth of the matter asserted, before the jury they it knew or ought to have known was obtained in violation of Mr. Bingham?s state and federal constitutional rights. 11. The State?s failure to provide these unlawful subpoenas was material to the undermining Mr. Bingham?s out-of-court identification and statement and bolstering his in-court testimony. 26. Assuming without conceding that the out-of-court statement and identi?cation Mr. Bingham made to police was not suppressed, this new information would have been critical for the jury to hear in determining the credibility of the out-of-court statement and identi?cation?as well as accessing Mr. Bingham?s credibility overall. 27. Mr. Bingham himself was either favorable to the defendant or wholly incredible, making him largely irrelevant; however, the impeachment evidence admitted despite Mr. Bingham may have affected the jurors. Yet, had trial counsel had this unlawful subpoena, they would have raised it on cross-examine and been able to effectively counter-punch. 28. The jury would have heard that the District Attorney?s Of?ce issued Mr. Bingham, the victim of a shooting, an unlawful subpoena that carried a very coercive if erroneous threat of imprisonment, itself a very unusual and damning fact. They would also have been able to see this new information corroborates at least some of what Mr. Bingham had testi?ed to on direct: that he wants no part of this case and felt harassed by the State; that, whole lot of people coming to me, different people at the hospital. I?m full of all kind of medication. I get out of the hospital, I?m full of all kind of medication. You got me saying this, you got me saying that. You?re confusing me.? Trial Tr. p. 48. 29. Had this information been disclosed and presented to the jury, a reasonable juror would have wondered whether these subpoenas affected the truth?ilness of Mr. Bingham?s out- of-court statement and identi?cation. Had this information been disclosed and presented to the jury, a reasonable juror would likely have understood that when Mr. Bingham was facing the threat of imprisonment he told the State what they wanted to hear to avoid jail; whereas when he testified, he was already incarcerated and so he did not need to lie anymore. At a minimum the jury ought to have heard about the coercive tactics the State employed in order to secure Mr. Watson?s statement and identi?cation and been able to decide for itself what it meant to the truth of the matters asserted during the State?s impeachment of Mr. Bingham. The cumulative effect of this and the other suppressed evidence establish the materiality prong of Brady/Napue 30. Admittedly, this evidence alone may not have create the reasonable probability or likelihood that the outcome would have been different within the meaning of Brady or Napue. This is so because, standing alone, Mr. Bingham?s testimony, even the impeachment evidence, was not very strong and did not move the dial toward a guilty verdict; however, a court?s assessment of materiality must be ?considered collectively, not item by item,? Kyles, 514 US. at 436. See also United States v. Sipe, 388 F.3d 478 (?nding that ?[w]hen there are a number of Brady violations, a court must analyze whether the cumulative effect of all such evidence suppressed by the government raises a reasonable probability that its disclosure would have produced a different result?). 31. If this Court considers this further evidence in addition to the undisclosed evidence, then there is doubtless a reasonable probability that the outcome would have been different had all 7 the suppressed evidence been made available. Mr. Johnson is entitled to a new trial. IV. CONCLUSION WHEREFORE, Mr. Johnson prays that this Court grant him a new trial on the basis that the State violated his right to due process as set out in Brady and Napue. Respectfully Submitted, i Corrnac' Boyle, La. ar 363?5 Shanita Farris, La. ar 37113 Capital Appeals Pr ject 636 Baronne Street New Orleans, La 70] 13 504-529-5955 Certi?cate of Service I hereby certify that I have caused to be served by mail or hand delivery in open court a copy of the foregoing document upon the prosecution on the day of ?ling. Ni Ex. A of. re YOU Are Hereby Nori?ed pursuant to art. 66 to appear before the Diem-1c: Attorney For the Parish of Orleans, to testifyco the cunt: Insuda nutter: asmay'be required ofyou. on FI-Iday, 'r-2s-14 10 am at to Assistant District Attorney: Louls P. Russo phune at 619 South White Street in the case of: State of LA vs. Freddie Johnson Item F-27455-14 Case M545-332 Chargeis): E12330 Attempted Murder instructions: {Contact the. District: suh'peen lilting this: at. Aliemev's ?Of?ce when onI appear to testify; - SUBPOENA - AND IMPRISDNMENT MAY es IMPOSED A FAILURE TO OBEY THIS NOTICE. Of?ce of the Orleans Parish District Attorney CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS RETURN OF PERSONAL SERVICE THIS IS TO CERTIFY that on eat-vet i received the process of Court of which this Is a duplicateRecipient of Service THIS IS TO L4 I [1:367 ?m I made due Personal Service thereof by leaving same in the hands of the aforeslgned Recipient Clinm?? rPoint 61W (pieose write Recipieot's name), the person rm RETURN OF DOMICHIARY SERVICE THIS IS TO CERTIFY that on Server of Process i received the process ofCourt of which this Is a duplicate. Recipient of Service THIS IS TO CERTIFY that on lmade due Personal Service thereofb ieavin sa . the aforeslgned Recipient 3 me In the hands of (pieese write Recipient?s name), a person ofsuitable age and disuetion. residing at the domicile of the person to whom the said process of Court was issued, who was absent at the time. which iactl learned lnterro ti hands the said process was left. 5' EH Re the person in whose Server of Process Ex. A FINE AND IMPRISONMENT MAY BE IMPDSED roe FAILURE TO oecv nos nonce. Of?ce of the Orleans Parish District Attorney \uuehmw?m?o You Are Hereby Noti?ed pursuant to LSA-CCRP art. 66 to appear before the DIStn'ct Attorney For the Parish oFOtIeans, to testify to the truth moor-cling to your knowledge in such matters as maybe requtmdofyou. On Friday. 7-25-14 at 10am to Assistant District Attorney: Louis P. Russo phone at 619 South White Street In the case of: State of LA vs. Freddie Johnson Item 4 Case Change (5): Attempted Murder Instructions: Contact the above named Assistant?Dianna; Lhtiemey' upon. receipt of thissuhpoena'c. LIB-riots,E this'lsuhpoeneitsitht you to: the Eiist'tictt :Attorney's Of?ce when you: appear- to testify; 1f. CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS RETURN OF PERSONAL SERVICE THIS IS TO CERTIFY that on I received the process of Court of which this is a duplicate. Recipient of Service THIS IS TO CERTIFY that on I made due Personal Service thereof by leaving same In the hands of the aforeslgned Recipient {intense write Recipient?s name), the person to whom the process is directed. Server of Process RETURN OF DOMICILIARY SERVICE THIS IS TO CERTIFY that on I received the process of Court of which this is a duplicate. Recipient of Service THIS IS TO CERTIFY that on i made due Personal Service thereofby leasingr same in the hands of the aforeslgned Recipient (please we're Recipient?s name), Server of Process