1 The exhibits, I believe, have all been

2 admitted and received, and, urn, to the extent that,

3 ah, you know, I may not have officially ruled, they

4 are now admitted and received subject to objections

5 that were stated at the time.

6 Do you have a rebuttal case or anything you

7 wish to put on to rebut anything they've argued or

8 submitted?

9 MS. TAPLIN:

10 No, your Honor.

11 THE COURT:

12 All right. Do you want to make an argument?

13 MS. TAPLIN:

14 Sorry. One clarification. Did you just

15 submit S-14 or

16 MR. PICKETT:

17 S-14 was re-numbered. It's not the conduct

18 report.

19 MS. TAPLIN:

20 Okay. Thank you.

21 MR. PICKETT:

22 There's a new S-14, which is the FAX

23 transmittal sheet.

24 THE COURT:

25 All right. Now, do you want to make an

26 argument?

27 MS. TAPLIN:

28 Yes, your Honor.

29 THE COURT:

30 All right.

31 MS. TAPLIN:

32 In a first-degree murder case involving the

53 1 execution of a New Orleans police officer and two

2 other individuals in which a young African-American

3 man is accused possibly in a notorious case in a

4 notorious decade, this teenager was represented by

5 a lawyer who didn't even know how to pick a fair

6 and impartial jury. He admitted as much in court

7 when he allowed someone not even connected with

8 this case to take over voir dire for him. That

9 lawyer, arriving late that day, clearly did not

10 know how to voir dire a jury either.

11 The length of time that we've spent hearing

12 the testimony of three jurors on their bias or

13 presumed bias is essentially the length of time it

14 took to voir dire and select this entire jury in

15 Mr. Lacaze's capital trial.

16 Your Honor has asked us to address the issue

17 of ineffective assistance of counsel that was

18 raised on appeal, and I'd like to note here that

19 ineffective assistance of counsel in voir dire was

20 raised on appeal. Our claims of jury misconduct

21 were not, and there is a reason for that. The

22 misconduct was unknown at the time of the appeal,

23 and there was no evidence of the prejudice that

24 your Honor has seen.

25 On appeal when this claim was raised, the

26 Supreme Court stated, quote, "While Caulfield's

27 performance may have been less than stellar and the

28 speed of voir dire may give pause, on the balance

29 and particularly on this record, it cannot be

30 concluded that jurors were misinformed about any

31 single issue with respect to the guilt phase of

32 trial." The Court further said, "Even if counsel's

54 1 conduct at voir dire amounted to professional

2 dereliction, the lack of apparent prejudice dooms

3 claims of ineffectiveness."

4 The prejudice, which is what your Honor heard

5 from three individuals on Monday, is exactly what

6 the Supreme Court did not know. Mr. Caulfield and

7 Mr. Turk ended up with a jury that included a

8 member of the Louisiana State Police with a 20-year

9 history in law enforcement. Mr. Settle was asked

10 during voir dire about his connections to law

11 enforcement, and he failed to reveal anything about

12 his work history. Mr. Settle got up on the

13 stand --

14 THE COURT:

15 Clarify for me with respect to Settle.

16 MS. TAPLIN:

17 Yes.

18 THE COURT:

19 I understood he was a driver's license officer

20 or something of that nature.

21 MS. TAPLIN:

22 No, your Honor. Mr. Settle got up on the

23 stand and claimed to have never worked for the

24 State police, yet records presented to this Court

25 make very clear that at the time of Mr. Lacaze's

26 trial, he did work for the State police. And there

27 is a reason why business records are hearsay

28 exception because the records regularly maintained

29 for business and employment don't lie. Mr. Settle

30 did admit on the stand that he was a former police

31 officer, that he had a history as being a police

32 officer on the railroad, and Mr. Settle was clearly

55 1 asked during the voir dire about his ties to law

2 enforcement, and he remained completely silent

3 despite the fact that other members of this panel

4 volunteered their connections to law enforcement.

5 THE COURT:

6 What did he do for the State police?

7 MS. TAPLIN:

8 I believe he was a motor vehicles officer for

9 the State police. He was a field officer according

10 to his employment records.

11 THE COURT:

12 What does that mean?

13 MS. TAPLIN:

14 My understanding. of being a field officer is

15 that you are a police officer who is in the field,

16 urn, assessing tickets, essentially. I believe, urn,

17 vehicle violations, those sorts of things.

18 THE COURT:

19 You're suggesting that he was a -- what -- if

20 he were a deputy sheriff, you would say road

21 deputy?

22 MS. TAPLIN:

23 Essentially.

24 THE COURT:

25 You're saying he's a street trooper?

26 MS. TAPLIN:

27 No, your Honor. I'm not quite clear if it

28 would go that far to say street trooper. I would-

29 point out though that when we were able to obtain

30 the jury list that was not provided, we believe, to

31 Mr. Turk, Mr. Settle was listed as law enforcement.

32 Ah, Mr. Settle has also testified that he was a

56 1 police officer for 20 years, which clearly suggests

2 a connection to law enforcement r and yet he said

3 nothing.

4 THE COURT:

5 Now r at this point -- it's out of my head. If

6 it comes to mer then I'll interrupt you again.

7 MS. TAPLIN:

8 Okay. Mr. Settle's failure to be forthright

9 with this Court on Monday is really only additional

10 evidence pointing to his -misconduct.

11 And Mr. Caulfield and Mr. Turk ended up with a

12 jury that included a woman whose brother was

13 murdered only a few years before. This again is

14 prejudice that was completely unknown to the

15 Louisiana Supreme Court. Ms. Garrett was asked

16 during voir dire if her family or friends had ever

17 been the victims of crime. She said nothing,

18 despite the fact that again other members of the

19 panel had volunteered information. Ms. Garrett

20 never revealed that her brother had been murdered

21 only a few years before.

22 But I think the most shocking example to

23 everyone in the court was that of Ms. Mushatt.

24 Mr. Caulfield and Mr. Turk ended up with a jury

25 that included a NOPD dispatcher who remained

26 unchallenged. This r again r was not known to the

27 Louisiana Supreme Court at the time of Mr. Lacaze's

28 direct appeal. Louisiana Supreme Court

29 specifically said that there were only hints that

30 act- -- in the record before them that active duty

31 officers or their spouses may have served r and that

32 does not provide a basis for reversal.

57 1 But Ms. Mushatt was not simply a member of the

2 New Orleans Police Department. Ms. Mushatt was a

3 dispatcher who was in the room when the 9-1-1 call

4 came in relating to this homicide. Ms. Mushatt

5 specifically testified about the call that came in.

6 She specifically testified about how she and other

7 dispatchers were searching to try to find out

8 who Antoinette was, when the calls came in.

9 Ms. Mushatt testified that her husband was a

10 veteran police officer with the New Orleans Police

11 Department; Ms. Mushatt testified that she

12 attended Ronald Williams· funeral. And I just want

13 to pause there so that we can all think about how

14 much it affected this entire case to have someone

15 who attended the victim's funeral sit in judgment

16 against Mr. Lacaze and determine if he was guilty

17 of first-degree murder and if they should sentence

18 him to life or to death. This was completely

19 unknown to trial counsel, and this was unknown to

20 the Loui~iana Supreme Court on appeal.

21 The combination of Ms. Mushatt, of

22 David Settle, and Ms. Garrett on this jury is what

23 affected this case from the very start. The State

24 does not contest, or has not contested, any of the

25 facts that we've presented about these jurors·

26 backgrounds. They couldn't -- certainly could not

27 contest any of the facts about Ms. Mushatt, as it

28 comes out of her very mouth, and we've also

29 provided you with her employment records.

30 The State on cross-examine simply asked these

31 jurors or individuals if it would have affected

32 their jury service. When asked by the State if

58 1 being a police officer affected you as a juror,

2 Ms. Mushatt answered, "I don't think so." Even if

3 Ms. Mushatt had wholeheartedly endorsed her

4 impartiality, the case law makes abundantly clear

5 that a jurors' assurance that they are up to the

6 task is absolutely irrelevant to this Court's

7 inquiry. Whether it is the fault of the jurors or

8 Defense counselor the Judge, the result is the

9 same.

10 I'd like to turn now to Mr. Lacaze's claim of

11 judicial bias, and this is a claim that was not

12 raised on appeal, and it was not raised on appeal

13 because again, the facts were unknown to Defense

14 counsel at the time of appeal.

15 I thought a lot today about the process we've

16 gone through during the recusal of Judge Marullo.

17 We had several hearings. We went up to the

18 Louisiana Supreme Court and had oral argument on

19 the recusal issue. At the Louisiana Supreme Court

20 at that time, we were unaware of the report by

21 Sergeant Harrison that detailed the investigation

22 into the gun that was given to Antoinette Frank and

23 Judge Marullo's involvement in that. We didn't

24 even know those details. We had very little. But

25 even when presented with very little during oral

26 argument as the State argued that a hearing wasn't

27 necessary on recusal, it was Justice Guidry who

28 asked, quote, "How much more smoke do you need?" I

29 believe the Louisiana Supreme Court entered it's

30 opinion that very evening after oral argument.

31 I want to say from the outset that this is not

32 a personal attack on Judge Marullo.

59 1 depend on finding corruption or that he engaged in

2 something untoward with Ms. Frank or David Talley.

3 Judge Marullo testified before this Court that he

4 did not sign the order, and this Court may credit

5 his current testimony or not, but ultimately, who

6 signed this order doesn't matter. I don't think

7 that there can be any question that the Court had

8 an obligation to disclose that, one, he had been

9 approached by Sergeant Harrison; that, two,

10 Sergeant Harrison had informed him that something

11 that looked like his signature was on an order

12 releasing what appears to be the murder weapon to

13 Antoinette Frank; that, three, he gave statements

14 to these officers as part of their investigation;

15 and that, four, he then proceeded to refuse to

16 answer questions, to give a taped statement,

17 because he was sitting on Rogers Lacaze's case.

18 And then Judge Marullo sat silently as

19 Rogers Lacaze testified that Antoinette Frank had

20 told him she was getting a 9 millimeter weapon from

21 the property room from a friend, with no other

22 evidence in support of that.

23 Judge Marullo had an obligation to reveal this

24 information, and he had an obligation to recuse

25 himself. And I will note that a Motion to Recuse

26 was filed in this case, and even during that

27 recusal hearing, Judge Marullo failed to reveal

28 this critical information.

29 THE COURT:

30 What was the basis of that Motion to Recuse?

31 MS. TAPLIN:

32 The basis of the Motion to Recuse was at the

60 1 beginning of trial -- I think it was the day of

2 trial -- Judge Marullo held Willie Turk in

3 contempt. He sentenced him to six months in

4 prison, urn, for violating a gag order.

5 Judge Marullo, according to the motion, screamed

6 at Mr. Turk. He felt incompetent to proceed. Ah,

7 he embarrassed him in front of his client, and so

8 Mr. Turk filed a Motion to Recuse based on that.

9 There was a hearing in front of Judge McCabe,

10 and Judge Marullo was asked if he could be

11 impartial in this matter. Urn, Judge Marullo stated

12 that he could. He did not reveal any other reason

13 for his recusal, urn, and that was the conclusion of

14 the recusal hearing.

15 THE COURT:

16 The basis for the filing of the motion was

17 Judge Marullo's enforcement of the gag order and

18 the manner in which he did it?

19 MS. TAPLIN: , \

20 Essentially, your Honor.

21 THE COURT:

22 I never really understood what that was about,

23 if it was related to the weapon or some other

24 conduct or --

25 MS. TAPLIN:

26 It was not related to the weapon for the

27 very reason that Defense counsel didn't know about

28 it. Defense counsel was never told about this

29 weapon. Defense counsel was never told about

30 Judge Marullo's involvement. Defense counsel had

31 no idea this Public Integrity Division

32 investigation was going on.

61 1 THE COURT:

2 Okay.

3 MS. TAPLIN:

4 The Supreme Court has held, "Every procedure

5 which would offer a possible temptation to the

6 average man as Judge, not to hold the balance nice,

7 clear, and true between the State and the accused,

8 denies the latter due process of law. To perform

9 its high function in the best way, justice must

10 satisfy the appearance of justice." Mr. Lacaze's

11 trial did not satisfy the appearance of justice.

12 It didn't even come close.

13 Every piece of evidence, every single witness

14 that this Court has heard from this week, was

15 someone or something that was not put before the

16 jury in 1995 and was not put before the Louisiana

17 Supreme Court on direct appeal. Through this

18 evidentiary hearing, through pleadings and

19 exhibits, we have attempted to present what should

20 have been done in 1995 if the adversarial process

21 had been engaged.

22 I'm gonna discuss our additional claims of

23 ineffective assistance of counsel, and I will not

24 spend too much time on the deficiency prong, as I

25 feel that there's been ample evidence presented

26 before this Court that you 1 re well aware of.

27 However, this Court knows that the two prongs of

28 the Stricklin claim are deficiency and proof of

29 prejudice. The question in this case is not what

30 more could Willie Turk have done. The question is,

31 could Willie Turk have done any less.

32 I found it interesting this week when the

62 1 District Attorney cross-examined many witnesses,

2 they would ask, "Did you call Willie Turk," as if

3 it is the obligation of witnesses to come to

4 Mr. Turk, as if it is the obligation of witnesses

5 to know what is relevant evidence in a capital

6 trial, as if it is the obligation of witnesses to

7 present themselves with records at Mr. Lacaze -­

8 excuse me, at Mr. Turk's door. The duty is on

9 effective counsel to perform some kind of

10 investigation. The duty is on effective counsel to

11 essentially reach out to these witnesses, to

12 collect records, to engage experts. This is

13 counsel's duty. This is not the witness' duty.

14 It's not the job of the 18-year-old defendant's

15 family and friends. It's the job of counsel. It's

16 the job of investigators like those your Honor has

17 seen this week, Ms. Thomas r Ms. Wydra. These are

18 people who do this work and should do this work.

19 I want to first address the identification

20 issues surrounding ineffective assistance of

21 counsel, and again r this was raised on direct

22 appeal. On direct appeal r the Court made very

23 clear that the matter could not be resolved on this

24 record, and the reason for that is that the Court

25 heard very little of what your Honor has heard this

26 week. The Court did not have transcripts of the

27 preliminary hearing where Quoc Vu and Chau Vu first

28 made identifications. We made that available to

29 your Honor as an exhibit because it wasn't even

30 included in the record.

31 The Court did not have the NOPD statements of

32 the eyewitness r which r although suppressed, the

63 1 information in it would have come out at the

2 suppression hearing, and the Court would have heard

3 the vastly inconsistent statements about what those

4 witnesses observed that night.

5 The Louisiana Supreme Court didn't hear the

6 testimony of Dr. Dysart regarding the reliability

7 of these eyewitness identifications, and the

8 Louisiana Supreme Court didn't hear the testimony

9 of Vui Vu, which your Honor heard for the first

10 time of anyone in this case.

11 r won't say much about John Ross or the credit

12 card because, as Mr. Reed t~stified on Friday,

13 evidence of this credit card hardly made the

14 State's case for either first- or second-degree

15 murder. r will say that Willie Turk's

16 ineffectiveness certainly stretched his failure to

17 challenge the testimony and the identification of

18 John Ross. He never asked for a copy of the lineup

19 and discovered how remarkably suggestive it was to

20 include the names and identifying information of

21 all of the individuals. He never requested the gas

22 station receipt, which has never been produced to

23 post-conviction counsel. He never held a hearing

24 on the Motion to Suppress where he may have

25 discovered that John Ross originally told police

26 that Rogers Lacaze was in a car with a woman, a

27 fact that completely contradicts the State's

28 narrative at trial. He would have discovered that

29 Mr. Ross had seen media on the case and discussed

30 it with his brother-in-law before he was approached

31 by the police.

32 And had he been paying attention at trial, he

64 1 would have noticed that John Ross never testified

2· to seeing anyone use Ronald Williams' credit card

3 on the night of the crime. He simply stated that

4 he saw a man later identified as Rogers Lacaze use

5 a credit card on some unknown night. His

6 inattention allowed the State to argue facts not in

7 evidence to the jury.

8 In a cas'e where the only direct evidence

9 placing his client inside the restaurant at the

10 time of the homicide was the testimony of

11 eyewitnesses, it is incomprehensible that Mr. Turk

12 would not file a motion to suppress. It's

13 incomprehensible that he waived all objections to

14 identification.

15 And as this Court heard from Dr. Dysart, the

16 identifications in this case had all of the

17 hallmarks of unreliability. There was limited

18 opportunity to see the perpetrators. It was a

19 cross-racial identification. The witnesses had the

20 opportunity to contaminate each other by speaking

21 before they gave statements to police. The

22 witnesses were hiding in fear, and the procedures

23 were unduly suggestive.

24 The failure to move to suppress the

25 identification of Chau Vu is especially shocking

26 because she identified Mr. Lacaze for the first

27 time in court standing in a prison uniform next to

28 Antoinette Frank, which your Honor is well aware,

29 is highly suggestive. Again, this occurred at

30 preliminary hearing, which the Louisiana Supreme

31 Court knew nothing about, because there was no

32 transcript.

65 1 I don't believe that Cha~ Vu was lying at

2 trial. I don't believe that Quoc Vu came in here

3 and lied to you, but I do know and we all know that

4 memory can play tricks on you. We know that it can

5 shift based on your influences. We know that in

6 many cases of wrongful convictions, eyewitnesses

7 remain certain that the wrong man was the

8 perpetrator even after DNA evidence exonerated

9 them. But these issues were never presented to the

10 Court at a suppression hearing or to the jury.

11 There was no discussion of it during voir dire.

12 There were no instructions on eyewitness evidence

13 and no meaningful cross-examination on the

14 witnesses' ability to see the perpetrators

15 themselves.

16 This Court had the opportunity to hear from

17 Vui Vu for the first time. Again, a person that

18 the Louisiana Supreme Court knew nothing about.

19 The State failed to disclose to Defense counsel

20 that Ms. Vui Vu was shown a photographic lineup and

21 did not identify Rogers Lacaze. The State never

22 called Ms. Vu to the stand. I think Ms. Vu's

23 testimony last week explains why the State would

24 not want her before the jury. If they had, the

25 jurors would have heard a different version of what

26 went on in that cooler.

27 Ms. Vu testified that she and Quoc and Chau

28 sat together in the cooler and that all you could

29 see was the shadow of a person. Ms. Vu was the

30 only one of the three who never saw Rogers Lacaze

31 eating dinner that night, because she was in the

32 kitchen. She was the only one who was not open to

66 1 the assumption that the perpetrator who came in

2 earlier was the same person who came in during the

3 shootings. The State had a duty to disclose

4 information about Ms. Vu and the lineup, but

5 Mr. Turk also had a duty to investigate it.

6 I think one of the most instructive moments

7 on this hearing was when the State chose to call

8 Quoc Vu to the stand in an attempt to rebut

9 Ms. Vui Vu's testimony. When I asked Mr. Vu if Vui

10 would lie about her account, he said, "She doesn't

11 lie about nothing." And so this Court got to see

12 what the jury didn't, which is two witnesses giving

13 different accounts of that night. We're not

14 retrying Rogers Lacaze's case in this courtroom,

15 although I know sometimes it appears close. But

16 we're simply trying to demonstrate the evidence

17 that could have been put before the jurors in 1995.

18 I'm gonna move on to the ineffective

19 assistance of counsel for failure to call

20 Ms. Angela Walker and Mr. Peter Williams. Again,

21 this was a claim that was not raised on direct

22 appeal. Willie Turk presented essentially a

23 halfhearted alibi Defense throughout, through only

24 his client and his client's brother, a man that no

25 juror credited. The State argued that it was

26 halfhearted because it was a lie.

27 The State put on Patrick Mazant, who testified

28 that Rogers Lacaze never played pool that night.

29 The State made Rogers and his brother look like

30 liars because their timing was off. They made them

31 look like liars, because they had called each other

32 from a prison phone. The State made Michael look

67 1 like a liar because he said that police had beat a

2 statement out of him. This concept would not have

3 been unheard of to an Orleans Parish jury who were

4 well aware of the activities of some New Orleans

5 police officers in 1995, yet without the

6 corroboration of non-family members, there was

7 nothing for the jury to hang onto. I believe the

8 Louisiana Supreme Court, in reciting the facts of

9 this case, even made mention that Mr. Turk

10 mentioned a woman like Angela, yet she never was

11 put before the jury.

12 Your Honor has heard what the jury did not

13 hear, two impartial people standing up and

14 unwaiveringly stating, "I was with Rogers that

15 night." You heard from Angela as she testified in

16 front of her husband, who is a New Orleans police

17 officer. You heard from Peter, who didn't even

18 know Angela well enough to remember her name.

19 These are not two people who got together and

20 concocted a story 18 years later. These are two

21 people who stood up and told this Court what they

22 knew about that night. These are two people who

23 contradicted the testimony of Patrick Mazant both

24 when he stated that Rogers was never playing pool

25 that night and also when he stated that he always

26 checked I.D.s at the front door, and that's how he

27 would know.

28 Ms. LaRhonda White also testified in a way

29 that would have completely contradicted

30 Patrick Mazant had she been presented at trial.

31 Patrick Mazant, who himself would have been

32 motivated to say what police wanted to hear,

68 1 because he ran an establishment where drugs were

2 sold and children were running around freelYI but

3 again l none of this was known to jurors.

4 We don't have to ask if Peter was willing to

5 testify in 1995. He did. He testified at a

he~ring. 6 preliminary Again l the transcript of

7 which was never before the Louisiana Supreme Court.

8 And as he testified l he never heard from

9 Willie Turk ever again. We don't have to ask if

10 Mr. Turk knew about Angela. Not only was her name

11 mentioned throughout the trial l but she was

12 actually on his list of alibi witnesses l yet he

+3 never contacted her l he never interviewed and never

14 asked her to testify. He failed to take the basic

15 steps to put on the very Defense that he was trying

16 to put on l and that is inexcusable.

17 I will turn just very briefly to ineffective

18 assistance of counsel for failure to hire a crime

19 scene expert. This again was a claim not raised on

20 direct appeal. Yet even without Defense counsel

21 raising the claim or the issues about the crime

22 scene investigation l it was Justice Traylor who

23 stated sua sponte that the State's version of the

24 events presented at trial was implausible l having

25 not heard any of the evidence that your Honor has

26 been presented with today. Again l the claim of

27 ineffective assistance of counsel for failure to

28 hire a crime scene expert wasn't even before the

29 Court l so they could not rule on it. But that

30 speaks volumes that the Louisiana Supreme Court

31 went out of their way to call this implausible.

32 Had Willie Turk hired a crime scene

69 1 investigator, the jury would have heard what your

2 Honor heard, which is essentially an expert who had

3 been provided with the materials giving a version

4 of what he thought about the crime scene

5 investigation in this case and how the crime took

6 place. Your Honor would have heard essentially

7 perhaps the state would have called someone in

8 rebuttal and the jury would have heard two

9 experts.with different versions, and they would

10 have been able to decide which one they believed.

11 The jury would have also heard, as Mr. Scanlan

12 testified, that the bar that Ronald Williams was

13 perhaps shot across, including all of the items,

14 was at eye level, making it, as the Supreme Court

15 said, implausible that a man of Mr. Lacaze's height

16 could have reached over those things and shot

17 Ronald Williams in the manner that he was shot. At

18 Rogers Lacaze's trial the jury only heard one

19 voice.

20 I'll now move on to briefly address

21 ineffective assistance of counsel at the penalty

22 phase. This was raised, um, on Mr. Lacaze's direct

23 appeal, and the Court was very specific in their

24 language. They said, "Mr. Lacaze was absolutely

25 entitled to have the jurors consider his low I.Q.,

26 yet this, like other questions about performance of

27 counsel, cannot be resolved on the present record."

28 This was the only claim where even a slight bit of

29 information before the Louisiana Supreme Court, but

30 they did not hear what your Honor heard this week.

31 This Court heard extensively about

32 Mr. Lacaze's intellectual deficits, both from

70 1 family members and expert witnesses. I'm not gonna

2 attempt to re-create it, but this testimony was

3 critical to present to the jury and answer the

4 question of how Rogers could have been manipulated

5 and set up by Antoinette Frank, how he could have

6 been her mark, and answer the ultimate question of

7 whether they would sentence him to live or sentence

8 him to die.

9 What we see in this case is a Defense attorney

10 who fundamentally did not understand the basics of

11 how to try a capital case, which would have

12 included having your client evaluated by an expert.

13 As we heard from Mr. Trenticosta, on the night

14 that Rogers was convicted of first-degree murder,

15 Willie Turk frantically called him for the first

16 time and asked him what evidence he was supposed to

17 put on'in the penalty phase. He asked him if he

18 would come and testify about the death penalty.

19 Mr. Trenticosta had to explain to Mr. Turk that

20 that would not be proper testimony at the penalty

21 phase of a capital trial. Trying to help in the

22 11th hour, Mr. Trenticosta could only explain the

23 basics of mitigating circumstances and make

24 suggestions about witnesses, but it was too late

25 for any real help.

26 Absent the testimony of experts like

27 Dr. Woods, like Mr. Lacaze1s teacher, Ms. Bierria,

28 like Ms. Mack, like Ms. White, the State was able

29 to present a very distorted picture of

30 Rogers Lacaze to this jury. The jury never heard

31 about how Rogers Lacaze relied on others to protect

32 him, like his brother, Michael. They never heard

71 1 that Rogers was the last one off the porch. They

2 never heard about how Rogers looked to children far

3 younger than him to lead him. They never heard

4 about how Rogers attempted to mask his many

5 intellectual deficits and where his support system

6 simply wasn't equipped to help him through. They

7 never heard that he was a person with an I.Q. of

8 71, which would have been easily ascertainable had

9 counsel bothered to have him evaluated.

10 We've raised ineffective assistance of counsel

11 at penalty phase. We have also raised a straight

12 ~ up Atkins claim, and I would point out to the Court

13 that under 905.5.1 (C), whether post-conviction or

14 at trial, the standard for proof of mental

15 retardation is a preponderance of the evidence. We

16 have established this by a preponderance of the

17 evidence.

18 ,I will now move to ineffective assistance of

19 counsel for failure to litigate a Motion to

20 Suppress Statements. Again, your Honor, this is an

21 issue that was not raised on direct appeal. It is

22 being raised for the first time.

23 THE COURT:

24 Well, see, one of the reasons I mentioned what

25 I did this morning, it seemed to me that in the

26 earlier part of the opinion Justice Traylor said

27 that that was really without merit, because he had

28 been permitted to adopt Antoinette Frank's motions

29 and, therefore, that met the standard, and there

30 was strategic reasons for it and so forth. You

31 don't remember that?

32 MS. TAPLIN:

72 1 Well, and if I could be clear, we are not

2 alleging that Mr. Turk did not raise the issue of

3 suppression of statements. He did. There was a

4 hearing on it. Urn, but that he did not present the

5 very evidence that your Honor heard this week about

6 Mr. Lacaze's intellectual deficits, which would

7 have been critical to winning a motion to suppress.

8 So that is the issue that we're putting before this

9 Court, and that is the evidence that wasn't before

10 the Louisiana Supreme Court. This evidence was

11 critical to present to a jury to answer the single

12 question, why would Mr. Lacaze admit to doing

13 something that he didn't do, but it was also

14 critical to present to the Court on a motion to

15 suppress.

16 Even taking this intellectual deficits issue

17 aside, in this case, the Miranda warnings were

18 incomplete. Not all of the officers testified at

19 suppression hearing, and as your Honor heard from

20 Detective Demma and from Detective Rantz today,

21 Mr. Lacaze, 18 years old with intellectual

22 deficits, was left alone in a room with

23 Patrick Young for an unknown period of time that

24 was unrecorded and not even documented in the

25 police report. And I hope that gives this Court

26 pause, because it gives me pause.

27 But what was completely missing from the

28 litigation of the motion to suppress, aside from

29 that testimony, was the assessments of Mr. Lacaze's

30 mental deficiencies to explain why an 18-year-old

31 who was not involved in the shootings would be

32 susceptible to making the statement saying he was

73 1 present on the scene. Despite glaring indications

2 that his client suffered from intellectual

3 deficits r Mr. Turk never bothered to have him

4 evaluated and never presented this evidence before

5 the Court or before the jury.

6 I will now move to ineffective assistance of

7 counsel for failure to investigate alternate

8 suspects. Again r this was not raised on direct

9 appeal. This wasn1t raised on direct appeal

10 because I think as your Honor is aware r there's

11 virtually nothing in this record that refers to

12 Adam Frank. We1ve attempted to re-create

13 essentially an investigation that Willie Turk never

14 performed. UnfortunatelYr now it's 18 years later.

15 In 1995 Willie Turk's only real effort to put an

16 alternate suspect into the minds of jurors was to

17 simply mention it in argument. That was followed

18 by virtually no evidence. Some evidence r but

19 virtually none. Mr. Turk never interviewed any

20 witnesses about Adam Frank. Mr. Turk never

21 interviewed Police Officers Stanley Morlier or

22 John Landry but instead called them blindly to the

23 stand and allowed them to lie without impeachment.

24 I want to point your Honor to the

25 juxtaposition of Officer Morlier's testimony and

26 Investigator Thomas' testimony this week.

27 Ms. Thomas' testimony last week is telling of what

28 Willie Turk could have done had he employed an

29 investigator who would have interviewed

30 Stanley Morlier. Stanley Morlier got on the stand

31 and lied to this Court for the second time in

32 Rogers Lacaze's trial. Under pressure r

74 1 Officer Morlier admitted to some things. He

2 admitted that he thought Adam Frank was involved

3 in this crime. He admitted that he had used a

4 confidential informant to try and find him. He

5 admitted that Adam was thrown out of the

6 restaurant by him and Ronnie Williams. He

7 admitted that Antoinette Frank threatened to kill

8 Ronnie Williams. But he also denied a great many

9 things. He allowed Ms. Thomas to tell this Court

10 exactly what Officer Morlier had told her, about

11 how Officer Morlier bragged about being able to

12 swing trials in whatever direction he wanted.

13 None of the things I just said were presented

14 to Mr. Lacaze's jury. None of the information that

15 Stanley Morlier had to offer went before the jury

16 in Mr. Lacaze's case. All they saw was an inept

17 attorney asking questions and a police officer

18 informing him that his questions had no merit.

19 Willie Turk also failed to utilize even the

20 documents that he had in his file. He never

21 called any of the individuals who appeared on

22 Antoinette Frank's call log. If he had, he would

23 have noticed a call from Antoinette Frank to a home

24 in Rayville on March 2nd, 1995. He would have

25 discovered that she placed a call to a short

26 teenager named Larone Pierre just 20 minutes after

27 calling Ron Williams. If he bothered to

28 investigate, he could have found Adam Frank merely

29 right across the street, as Officer Fleming

30 testified to. He may have found Mr. Pierre, and he

31 may have found the murder weapon in this case. We

32 don't know how much Willie Turk would have found,

75 1 because he never tried.

2 In order to demonstrate that he was

3 prejudiced, Mr. Lacaze need only show that there is

4 a reasonable probability that but for counsel's

5 unprofessional errors, the result of the

6 proceedings would have been different. A

7 reasonable probability is a probability sufficient

8 to undermine confidence in the outcome.

9 This Court must take into account both

10 evidence that was suppressed by the State at trial

11 and the evidence that was not presented by

12 ineffective counsel. The State's decision to call

13 Adam Frank yesterday, I believe, was tantamount to

14 a confession that the evidence that we presented in

15 our case in chief, the combination of the Brady and

16 Stricklin claims, undermined their confidence in

17 the outcome. So they reached out to a confessed

18 criminal to come in and attempt to rebut this

19 testimony, to restore confidence in this outcome.

20 As a legal matter, even if Adam Frank were to be

21 believed whole cloth that he didn't commit this

22 crime, this post-trial evidence cannot restore

23 confidence in the outcome of this trial. It only

24 further demonstrates the need for a new trial where

25 all of the evidence can be considered.

26 But even assuming the State's legal theory

27 that new witnesses could restore confidence in the

28 outcome, Adam Frank's testimony surely doesn't.

29 The State is essentially asking this Court to set

30 aside all of the evidence suppressed at trial,

31 evidence that trial counsel had and didn't utilize

32 also, and rely on the testimony of a manifestly

76 1 unreliable person, Antoinette Frank's brother, her

2 protector, someone who admitted on direct that he

3 was a fugitive from the law at the time of this

4 crime, someone who testified that he got a

5 9 millimeter Beretta from Antoinette Frank in

6 January, raising questions as to why Ms. Frank

7 would have reported the same gun stolen only two

8 weeks before these murders. He testified that he

9 carried around this gun for years, or he had this

10 gun for years, yet said that it was broken.

11 Testified that he had the gun that the State has

12 asserted both in these proceedings and time and

13 time again at Antoinette Frank's trial was the

14 likely murder weapon in this case. He's a man who

15 admitted to wearing body armor and carrying a

16 police radio, as he said on direct, a man who had

17 first denied being in New Orleans in 1995 but then

18 said he visited his sister in January, a man whose

19 testimony was contradicted by the State's own

20 witness, Quoc Vu, who they put on on Monday who

21 said that he saw Adam Frank in New Orleans at the

22 gas station maybe two or three weeks before the

23 murders.

24 This is a man who tried to present a bogus

25 alibi to this Court, which was very quickly

26 contradicted by the pleadings of Defense counsel

27 and the records put before this Court. This is a

28 man who testified that he was in Rayville in 1995,

29 a small town, the very same town that

30 Antoinette Frank called on March 2nd, 1995; a man

31 with a history of brutalizing police officers, as

32 you heard from Officer Fleming; a man who bragged

77 1 about killing a New Orleans police officer, as you

2 also heard from Officer Fleming and saw in records

3 put before this Court; a man who denied on the

4 stand that he never sought a deal from the District

5 Attorney, only to be confronted with numerous

6 requests for assistance in exchange for

7 information. Adam Frank lied about never seeking

8 leniency from the District Attorney. He lied about

9 never bragging about killing Officer Williams, and

10 he lied about not being involved. His testimony

11 does not restore confidence in the outcome. It

12 only undermines it.

13 I want to speak briefly about Mr. Turk's

14 ineffectiveness for failure to investigate the gun

15 that was given to Antoinette Frank. Mr. Turk made

16 no attempt to find documentation of the likely

17 murder weapon. He made no inquiries at the

18 property room. He did not speak to police

19 officers. He did not subpoena records. He did not

20 discover that Ms. Frank had attempted to get other

21 guns from the property room. He did nothing and

22 allowed the State to argue to the jury that it was

23 Rogers who had the 9 millimeter, that it was Rogers

24 who shot Ron Williams, that it was Rogers who stood

25 over Ha and Cuong Vu and executed them.

26 Now, Mr. Turk's failure to discover this

27 evidence that the State hid does not excuse their

28 Brady violation, but either way you cut it,

29 Mr. Lacaze's basic right to due process and a fair

30 trial was violated.

31 I'm now gonna turn to the State's suppression

32 of evidence. These are all of our Brady claims in

78 1 this case, none of which were presented to the

2 Louisiana Supreme Court simply because this

3 information was not known until post conviction.

4 As this Court knows, most Brady claims are

5 supported by documentary evidence, not by

6 testimony, so this Court's actually heard very

7 little testimony this week on Mr. Lacaze's Brady

8 claims. But your Honor was able to hear from

9 Stanley Morlier, whose testimony not only supports

10 both a Brady claim but an Atkins claim.

11 At Rogers Lacaze's trial, Officer Morlier was

12 called by Willie Turk and was asked if he

13 witnessed an altercation between Adam Frank and

14 Ronald Williams. He said, "no." Officer Morlier

15 was asked if he ever witnessed Antoinette Frank

16 threaten to kill Ronald Williams in Ron Williams'

17 presence. He said, "no." Two months later

18 Officer Morlier was called by the State at

19 Antoinette Frank's trial. When asked virtually the

20 same question, Officer Morlier testified at length

21 about how he and Ronnie had to kick Adam Frank

22 out of the Kim Anh Restaurant, about how

23 Antoinette Frank threatened to kill Ronnie if he

24 ever messed with her brother again.

25 The State has tried to explain this in

26 briefing by saying that Officer Morlier's testimony

27 at trial was technically accurate because

28 Willie Turk was not asking the right questions.

29 The State argued that Officer Morlier answered,

30 quote, "Defense counsel's questions directly,

31 albeit, not in the way counsel would have

32 preferred." Officer Morlier did hear Antoinette

79 1 threat- -- Antoinette threaten to kill

2 Ron Williams, but as the State argues, it wasn't

3 in Ron Williams' presence, so, therefore, this was

4 technically accurate. The State argues that

5 Officer Morlier didn't witness an altercation so

6 much as I believe they described it as a beef.

7 Officer Morlier's testimony was clearly false.

8 Regardless, an outright lie does not require -- is

9 not required to mandate reversal. Courts will not

10 tolerate prosecutorial participation in technically

11 correct yet seriously misleading testimony.

12 This Court was also able to hear out of

13 Officer Morlier's mouth much more than even what he

14 testified to at Antoinette Frank's trial. Again,

15 he testified that he believed that Adam Frank was

16 somehow involved, that he was using a C.I. to track

17 him down, that he believed that that -- sorry, that

18 that C.I. was able to locate Adam Frank in Northern

19 Louisiana, that he gave a statement to homicide

20 detective -- excuse me, Public Integrity Division

21 Detective Richie Marino, who was, as your Honor

22 knows, very carefully involved in the homicide

23 investigation in this case, yet that is reflected

24 nowhere in the entire file.

25 Officer Morlier's position as an investigator

26 in this homicide, or lack thereof, is completely

27 irrelevant to the Court's Brady analysis, so I'm

28 not even gonna discuss it except to say that the

29 State's efforts to distance themselves from

30 Officer Morlier at this hearing, one of their

31 critical witnesses at Antoinette Frank's trial, is

32 telling.

80 1 What else was not included in the homicide

2 file of this case, an interview with

3 Officer David Talley, and that's, I believe,

4 Exhibit D-16. In this interview that's not

5 included in the file, Officer Talley is questioned

6 extensively about Adam Frank. He's asked where

7 Adam Frank is. He's asked if Adam Frank worked

8 security details. He's asked if Adam Frank was

9 ejected from the Kim Anh Restaurant by

10 Ronnie Williams. He's asked if Antoinette Frank

11 threatened to kill Ronnie Williams. He's asked if

12 Antoinette Frank ever got guns for her brother,

13 Adam. He's asked if Antoinette Frank ever gave

14 Adam her 9 millimeter.

15 Armed with these materials and armed with the

16 testimony of Stanley Morlier, effective counsel

17 could have put on a Defense for Rogers Lacaze.

18 Effective counsel could have used this information

19 to aid in his own investigation, which was

20 certainly lacking. Effective counsel could have

21 used this information to point to the shortcomings

22 in the NOPD's investigation, and I think this Court

23 saw that demonstrated with Officer Demma and

24 Officer Rantz, both today and yesterday.

25 Now, Rogers Lacaze didn't have effective

26 counsel, but that doesn't free the State of its

27 duty to disclose. I would ask this Court to look

28 carefully at the Kyles decision, which describes

29 the materiality of this kind of evidence. Kyles

30 explains how the Defense would have been able to

31 marshal the evidence that police ultimately

32 abandoned their investigation into a likely suspect

81 1 and laid the foundation for a vigorous argument

2 that police had been guilty of negligence. "Defense

3 counsel could have cross-examined the police

4 officers for failing to even consider an alternate

5 suspect1s possible guilt. This would have raised

6 serious questions about, quote, "the thoroughness

7 and even good faith of the police investigation and

8 allowed the Defense to attack the investigation as

9 shoddy." That is exactly what Kyles tells us about

10 the materiality of this kind of evidence.

11 Turning now to the suppression of statements

12 of eyewitnesses. I will only address this briefly,

13 but your Honor has already read the entire

14 statement of Chau Vu that was not disclosed to

15 Defense counsel. Any reading of that entire

16 statement makes clear that Ms. Vu did not see any

17 male perpetrator that night. Yet at trial, she

18 testified for the first time that she saw

19 Rogers Lacaze as she hid in the cooler. This is

20 the very kind of exculpatory material that the

21 State was lambasted by the United States Supreme

22 Court for failing to turn over in the Juan Smith

23 case. Had the jury heard the State's star witness

24 had previously stated that she did not see the male

25 perpetrator, it would have put the entire case into

26 a different light, so as to undermine the

27 confidence in the outcome of the trial.

28 This Court has also heard evidence for the

29 first time this week from Vui Vu, as I discussed,

30 that she was shown a lineup with Rogers Lacaze and

31 did not identify him. Now, Officer Demma may find

32 it insignificant that two out of the three

82 1 eyewitnesses didn1t identify Rogers Lacaze, but I

2 would state otherwise, and a jury certainly would

3 have recognized that had it been presented to them.

4 We addressed the gun as an ineffective

5 assistance of counsel claim, but it1s obviously

6 also a Brady claim. The State suppressed

7 voluminous records that documented

8 Antoinette Frank's efforts to secure a 9 millimeter

9 weapon, the same 9 millimeter weapon that was found

10 on her brother three years later, the same

11 9 millimeter weapon that she dubiously reported

12 stolen only two weeks before this crime. This

13 evidence not only demonstrated who had the gun but

14 who was pulling the strings, who was planning this

15 offense, who was going back to the evidence room to

16 try to get more guns, who was getting guns checked

17 out of the property room through Court orders,

18 challenging the State's narrative at both the

19 culpability and the penalty phases that Rogers

20 Lacaze had the 9 millimeter, that Rogers at age 18

21 was the mastermind of this notorious crime.

22 Police reports are supposed to be an historic

23 record of an investigation. In a murder case they

24 live on for decades. They1re supposed to be a

25 complete and accurate account of everything that

26 has happened in an investigation. Yet, what this

27 Court sees in the police report in this case, and

28 what it saw with the testimony of Detective Demma

29 and Detective Rantz, is that critical information

30 was left out. No mention that two out of the three

31 witnesses didn1t identify Rogers Lacaze, no mention

32 that Rogers Lacaze was interrogated alone by

83 1 Detective Young before he made a taped statement r

2 no mention of information involving Adam Frank, the

3 victim, or death threats that Antoinette Frank had

4 made on the victim, although the officers admitted

5 that they did know this information. Had the State

6 disclosed exculpatory evidence to effective

7 counsel, the police investigation against

8 Rogers Lacaze would have been exposed for what it

9 really was, a rush job where evidence that did not

10 fit into a certain narrative was disregarded or

11 hidden away.

12 Your Honor, I've only addressed a portion of

13 the claims that we have presented. The relief that

14 we ask for is not Herculean. The Court can but

15 does not need to reach the ultimate question of

16 actual innocence. The Court can but does not need

17 to reach the question of complete exemption from

18 the death penalty because Mr. Lacaze was mentally

19 retarded. The most basic question is whether this

20 was a fair proceeding with an outcome which this

21 Court could have confidence in. under any measure,

22 even squinting one's eyes and holding one's nose,

23 this proceeding was not. The simplest thing is to

24 set it for a new trial, and we thank your your

25 Honor, for your consideration.

26 THE COURT:

27 Thank you. Mr. Pickett or Mr. Kirkham,

28 please.

29 MR. PICKETT:

30 Thank you very much r your Honor. And again,

31 like Ms. Taplin, I will address only -- I think the

32 State's response addresses sufficiently most of the

84 1 claims raised by Mr. Lacaze. I will only address

2 that evidence and testimony which was adduced over

3 the last, ah, week and a half before this Court,

4 and then I want to first start out by correcting

5 opposing counsel's apparent misunderstanding of the

6 law.

7 It is not the State's burden to restore

8 confidence in the outcome of Mr. Lacaze's trial.

9 That is outrageous. Mr. Lacaze, and he alone, has

10 the entire burden to demonstrate a lack of

11 confidence in the burden. So that -- and any

12 ambiguity of the evidence adduced, ah, presented

13 here, must resolve in favor of the State.

14 On the record that has been made both before

15 and during this hearing, Mr. Lacaze has simply and

16 utterly failed to meet his burden under Article

17 930.2, under Brady, under Stricklin, under Napue,

18 under any case, Federal or State, under which he

19 brought a claim of demonstrating his entitlement to

20 post-conviction relief even -- either as to the

21 verdict of guilt or the sentence of death.

22 I will go briefly through the various claims

23 that he raised. Ah, the first claims discussed

24 were the juror misconduct claims, um, and, ah, it

25 must first be noted -- and this is this was

26 briefly or pointed out in response that, ah, the

27 proper standard under which this claim must be

28 reviewed is the standard that was announced by the

29 Louisiana Supreme Court while this direct review -­

30 or while Mr. Lacaze's direct appeal was going on.

31 It wasn't announced in this case, but it was

32 announced, ah, in a separate case during the course

85 1 of his direct appeal, and that reversed a previous

2 Louisiana law that law-enforcement officers were,

3 ah, per se' invalid or incompetent to sit as

4 jurors.

5 Now, the current law says and holds to this

6 day, and the law that must be used in this case, is

7 that like any other jurors, people associated or

8 employed by law enforcement must be assessed as to

9 whether the record demonstrates that they could

10 fairly and impartially address and review the

11 evidence and render a fair verdict.

12 Victoria Mushatt testified that she was a NOPD

13 dispatcher. That is true. That is un-

14 uncontroverted. However, in the case upon which we

15 rely notes that, ah -- it holds that, even under

16 the old standard, that only actively -- this was a

17 quote -- "actively employed criminal deputy sheriff

18 or any law-enforcement officer is not competent."

19 Ms. Mushatt was a civilian employee. She was not a

20 sworn officer. She was not curbed by that law. In

21 any event, under the new law, she took the stand

22 and, (A), at trial, she did say that she could be

23 fair and impartial. I think Ms. Taplin --

24 THE COURT:

25 Was it disclosed in her voir dire, which I

26 don't remember right now, that she worked for the

27 -- as a dispatcher?

28 MR. PICKETT:

29 I believe the record is silent as to that. I

30 don't believe it was disclosed. In any event, what

31 she said here in thi~ hearing on the very first day

32 without any equivocation was that her employment by

86 1 NOPD had no bearing whatsoever on her decision, and

2 she affirmed, in fact, that her decision to vote

3 guilty was based on the strength of the State's

4 evidence.

5 Now, ah, opposing counsel noted, urn -- I want

6 to say, in contradiction to what was noted by

7 opposing counsel, the Louisiana Supreme Court has

8 stated that a Trial Court's refusal to excuse a

9 prospective juror for cause is not abuse of

10 discretion, notwithstanding that the juror has

11 voiced a seemingly biased opinion, when after

12 further examination and instruction the juror

13 demonstrates a willingness and ability to decide

14 the case impartially according to the law and

15 evidence. That was precisely the testimony you

16 heard from Mrs. Mushatt, that her -- her decision

17 to vote guilty was based on the strength of the

18 State's evidence. She specifically disavowed that

19 it was due to her employment on NOPD. She stated

20 beyond that, that she was not friends with

21 Ronnie Williams. She attended his funeral in the

22 same sense -- and I hate to admit, I'm not exactly

23 friends or don't like everyone who works in the

24 D.A. 's Office, but ~f there was an Assistant

25 District Attorney who was murdered, you know I

26 would be at the funeral. That does not mean that

27 I would not give whoever was eventually charged

28 with that crime a fair shake were I chosen as a

29 juror.

30 So there's no familial -- familiar

31 friendly connection between Ms. Mushatt and

32 Officer Williams, and what it comes down to is she

87 1 stated clearly and without equivocation that her

2 employment by NOPD as a -- in a civilian capacity,

3 mind you -- had no bearing on her decision to vote

4 guilty, which was based on the strength of the

5 State's evidence. And even if there were to be

6 ambiguity as to whether that was the case, that

7 must be -- that must mirror against Mr. Lacaze in

8 this matter as he has the burden to show --

9 THE COURT:

10 Did the defendant exercise all of his

11 peremptory challenges, or do we know?

12 MR. PICKETT:

13 Honestly, at this point -- I used to know that

14 I cannot recall off the top of my head. It will

15 probably come to me in a few minutes in the middle

16 of another argument.

17 THE COURT:

18 Okay.

19 MR. PICKETT:

20 But right now, honestly, I cannot recall off

21 the top of my head whether he did nor not.

22 David Settle really comes down to, ah, the

23 same issue. Ah, he explicitly testified that his

24 employment in law enforcement, his relations with

25 law enforcement, did not affect his verdict. He

26 affirmed that in his statement of voir dire that

27 he'd be -- well, not his statement but his

28 concurrence of voir dire that he could be fair and

29 impartial as a

30 THE COURT:

31 Was he a civilian employee? Is that

32 established by the documentation, or was he a

88 1 commissioned law-enforcement officer?

2 MR. PICKETT:

3 I believe with the railroad police he was a

4 commissioned officer. He said he had arrest

5 powers. Urn, as for records of the State Police,

6 being a traffic officer, as Ms. Taplin before was

7 ambiguous as to what he did, it would not surprise

8 me if he were a sworn officer, but I do not know

9 that for a fact. But the record as submitted

10 hopefully should clear that up.

11 In any event, again, he stated the strength of

12 the State's evidence was the reason that he voted

13 guilty, ah, and I think there was validation of

14 that just by looking at the very strength of the

15 State's evidence. And I will get to that in a

16 second, although I think it is patently obvious

17 from the record.

18 Ah, Ms. Garrett -- now, obviously, there was

19 no testimony from her at all. Urn, there's an

20 affidavit which was submitted, and obviously there

21 was no one here to authenticate that affidavit. I

22 think it should be given little if any weight, but

23 whatever weight it's given, all it states that she

24 was the victim of a crime. She had a brother who

25 was murdered. Nowhere in there does it state that

26 it affected her ability to be partial (sic) or it

27 affected her verdict. Again, at best for

28 Mr. Lacaze, that's ambiguous, and that is simply

29 not good enough under 930.2.

30 So as to the jury misconduct claims, there is,

31 you know the law operates under the principle of

32 no harm, no foul, and there clearly was no harm

89 1 here. Ah, you had two jurors who came in here and

2 took the stand and said, my association with law

3 enforcement to whatever degree had no effect on my

4 verdict. My verdict was based on the strength of

5 the State's evidence at trial. As to that claim,

6 ah, Mr. Lacaze is not entitled to relief.

7 Moving on to what I refer to as the mystery

8 gun, the gun, ah -- well, which could be mystery

9 two guns. This is the gun, ah, that Ms. Frank

10 ended up to -- ended up with through, ah, from the

11 NOPD Property Room, from Central Evidence and

12 Property, and a gun that was found with Adam Frank

13 when he was arrested in 1998 in Richland Parish or,

14 I believe, actually within the City of Monroe.

15 Now, obviously, there's been no affirmative

16 evidence brought to this Court that those two are

17 the same weapon. If it was the same weapon, it

18 still means absolutely nothing. There's not a

19 shred of evidence. Not a single shred of evidence

20 has been presented that Adam Frank was anywhere

21 near New Orleans or at the Kim Anh Restaurant on

22 March 4th, 1995.

23 Ah, but again, there's no evidence that that

24 weapon found with Rogers or with Adam Frank in 1998

25 was even the gun that his sister obtained from the

26 property room, and -- and as far as the gun impacts

27 Antoinette Frank, there's no question that she was

28 involved, but guilt by association is simply not

29 enough for Mr. Lacaze in this case. The fact that

30 she had a brother that she cared for, that she

31 stuck up for, urn, does -- they can't simply just

32 count on an inferential leap that Adam Frank

90 1 committed a murder without any evidence whatsoever

2 to support even his presence within the Parish of

3 Orleans at that time. I mean, the gun, I mean, was

4 -- the fact that there's no evidence that was the

5 gun blows a very big hole in their theory that -­

6 that Adam Frank, urn, committed this murder, and

7 that's one of the, I think, theories that should

8 count against them is if -- they kind of -- they

9 went they said too much.

10 It would have been enough certainly to state a

11 claim of post-conviction relief that our client did

12 not do this; we don't know who did, but our client

13 did not do this. Well, they have gone further.

14 They have actually put forward a theory, an

15 affirmative theory, that it was Adam Frank, and

16 that theory has been entirely unsupported, and I

17 think that must be counted against Mr. Lacaze. It

18 has to be.

19 Now, as to David Talley, he came in here, and

20 he testified he could not establish that Marullo

21 signed the order. He never saw him do it.

22 Judge Marullo stated that he didn't sign an order.

23 He also affirmed that he had absolutely no bias.

24 He's said that twice now, no bias against

25 Rogers Lacaze in that case, that none of his

26 rulings were based on any bias that he had against

27 Mr. Lacaze. Urn, and also included in the record,

28 courtesy of the Petitioner's counsel, is the

29 in-chambers conference from the Frank trial where

30 Judge Marullo puts on the record that a handwriting

31 exemplar has shown that his signature, along with

32 signatures of Judge Morris Reed and possibly

91 1 Calvin Johnson, were forged on various release

2 orders for weapons from the property room of the

3 courthouse or C. E. -- or NOPD, which one.

4 Now, and and Ms. Taplin noted that it

5 doesnlt matter whether he actually signed the order

6 because he was -- his -- he was ambiguously

7 involved in this incident. He should have been

8 recused because of -- and I'm not even entirely

9 sure what. lIve heard several things, but I

10 they still actually have not stated what the basis

11 for his recusal are -- is. What interest did

12 Marullo have in the case because his name may have

13 been forged or because he may have even signed the

14 order giving a gun to an officer, which he stated

15 is not a routine practice. He also stated that he

16 never, as a matter of principle, as a matter of

17 professional practice, never would indirectly sign

18 an order giving a gun to an officer. He -- as he

19 stated, I would never sign an order to one officer

20 to give to another officer to give to -- to give a

21 gun to another -- another officer. He admitted

22 that he would have most likely signed an order

23 releasing the gun to Antoinette Frank had she come

24 to him directly, but he never, ah, would do it

25 through, I guess, what is the version of hearsay in

26 this case, through three different people to get to

27 her. Ah, and there's no basis not to credit his

28 testimony in that regard.

29 But even -- even if he did sign the order

30 giving her the gun, what does that matter in this

31 case? There is one thing throughout that opposing

32 counsel has yet to actually vocalize. Theylve kind

92 1 of spoken around it, but they've never hit the nail

2 on the head as to what the interest and the basis

3 for recusal is. He wasn't a witness. He was never

4 the subject of a P.I.B. investigation. He never

5 had a -- he never investigated anything himself.

6 He was not, as they referred to him last week, the

7 investi- the Judge, the investigator, ah,

8 various other capacities. He was simply the Judge.

9 As he called it, the umpire. And like any umpire

10 should, he refereed the case fairly. And the --

11 the interest -- you could tell -- you know, his

12 testimony made it obvious that the gun issue wasn't

13 even on his mind, and yet it still is fascinating

14 to me that this had any basis for his recusal or

15 make him in any way impartial.

16 I think having beat that -- that horse enough,

17 um, lId like to address briefly his Brady claims.

18 And I've already addressed one of the Brady claims,

19 you know, the State withheld evidence that

20 Adam Frank was involved. Obviously, if this case

21 had heard a single shred of evidence regarding

22 Adam Frank's involvement in this case, I -- I I

23 would be very shocked. I haven't heard any.

24 Um, they called Perry Fleming who admitted he

25 had no firsthand knowledge of the murder, that

26 Adam Frank was not arrested for the murder of

27 Ronnie Williams. He did not know Adam Frank, the

28 location of Adam Frank on March 4th, 1995, and -­

29 and presented telephone records that offer

30 absolutely no proof that Antoinette Frank called

31 Adam Frank, ah, on March 2nd of 1995. Again, it's

32 just speculation, and for Mr. Frank's, ah,

93 ------

1 Mr. Lacaze's purposes, he requires more than just

2 speculation unsupported by any other evidence in

3 order to demonstrate his entitlement to relief.

4 Stanley Morlier testified that he had spec-

5 he had suspicions, urn, that Adam Frank must have

6 been involved in the case. Now, what he did say,

7 interestingly, was that if he was involved, he felt

8 that it was minorly. I think he said that he was

9 holding -- he would have been holding the door.

10 But even then, he had suspicions. He didn't

11 present any evidence whatsoever. He never

12 approached Officers, ah, Detectives Demma or Rantz

13 or any eyewitness who spoke to Demma or Rantz

14 regarding these suspicions, and -- and -- and to

15 this day 18 years later, there's not been a shred

16 of evidence to support his suspicions.

17 As -- as Detectives Demma and Rantz each

18 testified, there is no part of proper police

19 protocol that requi~es them to chase down, you

20 know, any wild goose chase or any -- any

21 suspicions, lead, that they may be given. And

22 again, I keep -- I keep having -- you know, there's

23 not a single shred of evidence that Adam Frank

24 committed this crime. No matter how many ways they

25 attack it or however many witnesses or whatever

26 piece of evidence -- well, there is no evidence.

27 Urn, if -- if Angelique Thomas showed anything about

28 Morlier, urn, it's that, you know, his reliability

29 is -- is ambiguous, and so certainly why should

30 Detective Rantz or Demma have believed him had he

31 come to them with anything?

32 Urn, I mean, the Defense is asking the Court to

94 1 discredit the testimony in evidence not because

2 it's inherently suspect or incredible, because

3 there's other evidence that they think that

4 controverts it. Urn, they're asking the Court to

5 discredit the State's evidence simply because it

6 goes against their theory, but the problem is, they

7 don't have the burden just to show there might be

8 other evidence, which they haven't shown. They

9 have to show that based on that, had that evidence

10 been presented, the fury's determination to credit

11 State's evidence in light of that would have been

12 unreasonable, would have been irrational. And they

13 simply can't do that. Firstly, because they don't

14 actually present any evidence.

15 And I find it interesting that -- that

16 Ms. Taplin, in asking Eddie Rantz whether

17 David Talley was ever -- during David Talley's

18 statement whether Adam Frank was ever -- he was

19 ever asked about -- as if to suggest, look, this

20 was someone that NOPD thought was the suspect -­

21 she didn't ask him -- she didn't give the answer.

22 I had to give him the answer 'cause the answer that

23 David Talley gave specifically, the question was

24 whether he knew that Adam Frank had ever obtained a

25 gun through Antoinette Frank, which is the key for

26 their theory -- was "no, I' and Detective Rantz

27 stated, well, that ends it. I mean, not his direct

28 quote but to paraphrase, there was no reason to

29 investigate further when the person who would know

30 best, David TalleYI who's in charge of the gun

31 vault and admitted that Antoinette Frank could have

32 gotten a gun, but said he had no -- no evidence at

95 1 all that Antoinette had ever gotten a gun for

2 Adam Frank, he'd never -- he knew who Adam Frank

3 was, but he'd never become involved in the question

4 of obtaining a gun.

5 Again, they can speculate all they want.

6 That's fine. That's what they've been doing for

7 the last nine, ten days, but there's just simply no

8 evidence to support it, you know. In this -- at

9 trial the State needed to present the evidence.

10 Now the role is reversed. They have to present

11 evidence, and they have just failed to do it.

12 Moving on briefly to the ineffective

13 assistance of counsel claims, urn, we heard from

14 Nicholas Trenticosta certainly, the career capital

15 defense attorney, who admitted he thinks the death

16 penalty is wrong. He has clearly an interest in

17 getting Mr. Lacaze off death row by any means

18 possible. He's clearly a biased witness, ah, yet

19 he only knows that Turk called him asking for

20 advice about the penalty phase the night before.

21 Ah, he doesn't remember any answers that Turk gave

22 in response to his suggestions. He couldn't

23 testify whether Turk actually did follow his

24 advice, whether he followed his advice and was

25 unable to obtain witnesses. He admitted he wasn't

26 there at the penalty phase. I mean, again, he's

27 just more of a speculative witness. It's -- it's

28 -- you know, they're hoping if there's enough smoke

29 there's a fire, but they need to actually produce

30 fire. That's their burden.

31 Robert Jenkins came in here and very

32 graciously fell on his swo~d and called himself

96 1 ineffective in defending, ah, Mr. Lacaze's

2 co-defendant. Urn, interestingly, he -- he

3 complained about how rushed he felt to trial but at

4 the same time admitted, 'cause he had to admit,

5 that he moved for a speedy trial. But in any

6 event, regardless of how Mr. Jenkins feels about

7 his own performance -- and again, Stricklin is an

8 objective test, so any attorney's view of another

9 attorney's performance subjectively, even his own

10 performance, is -- is not relevant evidence.

11 Urn, what is a fact is that Robert Jenkins

12 defended a vic- a defendant, Antoinette Frank,

13 against whom the State brought essentially the same

14 evidence, the same witnesses, was based on the same

15 facts and the same occurrence, but he had two

16 additional months to prepare, and guess what? He

17 obtained the same result as Willie Turk. And while

18 we're at it, he also stated he could not speak for

19 Willie Turk's investigation. He was not around him

20 all the time. He mentioned that there were

21 discussions with Willie Turk, but he didn't really

22 go into them that deeply. He mentioned that Willie

23 Turk was concerned. Well, any Defense attorney,

24 lid imagine, ah, who's defending a client who's

25 facing the death penalty is going to be somewhat

26 concerned at some point. That is not equal to

27 deficient a deficient performance let alone

28 demonstrate prejudice.

29 I think Ben Cohen hardly even needs to be

30 addressed. He admitted he was biased once he was

31 finally pressed by Mr. Kirkham. He -- he kind of

32 talked around the issue and tried to evade it at

97 1 first, but he admitted that he was biased. Ah, I

2 mean, his true colors shown through in the end and

3 -- and also conveniently works for the exact same

4 people who are representing Lacaze right now. I

5 mean, I can't imagine any credible weight this

6 Court would give to that testimony, especially

7 since he can't speak to what Turk did because, like

8 me, he was probably in diapers at the time of

9 trial.

10 Now, ah, Vui Vu certainly -- yeah, she

11 testified to what she testified, but, ah, again, we

12 have two competing witnesses. She carne in. She

13 first of all said that she didn't see anything.

14 She could only see shadows. The only person she

15 saw was Antoinette Frank. She could not see the

16 male perpetrator. She could not describe the male

17 perpetrator. Obviously, she could not identify the

18 male perpetrator. She didn't say that she saw

19 she didn't see the crime. She didn't say that she

20 saw the male perpetrator and picked someone else

21 who wasn't Lacaze. She stated that she didn't even

22 see anything but a shadow, and she -- what she

23 described as a shadow of a male. And I don't know

24 how someone looks at a shadow, especially when

25 you're hiding in the back of a cooler, and can tell

26 whether it's male or female, ah, unless there's

27 some evidence that, you know -- but all she says

28 is, I saw a shadow, and it was a male shadow.

29 That's kind of suspect.

30 Urn, however, Quoc affirmatively carne in and

31 said Ms. Vu, ah, was in the back of the cooler

32 cowering. She was not near him and Chau except he

98 1 was walking back and forth, but -- and -- and not

2 only did he say so, he identified from the

3 photographs both where Vui was standing and -- and

4 the view he had/ and he unambiguously said that he

5 could see out of the cooler. Not that -- not just

6 that. He saw the male perpetrator. It was

7 Rogers Lacaze. He was a hundred percent certain.

8 And coming back to/ ah, the overarching theme, he

9 knew it was not Adam Frank. Why? 'Cause how did

10 he describe Adam Frank? Built like a linebacker.

11 And this Court saw that when they stood next to

12 each other. Who in their right mind would confuse

13 Adam Frank and Rogers Lacaze?

14 Jennifer Dysart testified that as far as a

15 case of mistaken identity between the person who

16 was identified mistakenly and the actual suspect,

17 the greatest height difference that she saw in her

18 own experience as an expert -- lots of experience

19 in this case, 18 years, something like that -- was

20 less than the height difference between Adam Frank

21 and Rogers Lacaze at that time and presumably now.

22 And she called that an outlier. She didn't go far

23 as to say a statistically insignificant, but by

24 definition, an outlier is not statistically

25 significant.

26 So their own expert witness on identifications

27 who/ while we're at it, this Court explicitly

28 forbade from testifying as to whether Quoc/ Chau's/

29 or John Ross' I.D.s were reliable or suggestive

30 even though they did try to backdoor as much of

31 that information as they could in/ ah/ stated that

32 the greatest height difference she had seen was

99 1 greater than the height -- was less than the height

2 difference in this case. She also agreed that the

3 more familiar that an eyewitness is with a person

4 the less likely they are to misidentify them. In

5 other words, the more reliable the identification

6 is. She also said that a person who had seen a

7 perpetrator on multiple times within the hour

8 before the incident that leads to the

9 identification is more likely to make a reliable

10 I.D. Ah, and this is a case where, ah, the time

11 immediately preceding the incident that

12 Rogers Lacaze and Antoinette Frank were in the

13 restaurant, they were there for about 15 minutes

14 eating while Quoc was out sweeping right next to

15 them. He -- he -- he saw them. He knew them.

16 He's familiar with Rogers Lacaze. He knew

17 Adam Frank obviously.

18 This is not -- this was not even -- and this

19 is another reason that the State objected to her

20 being called as an expert on eyewitness

21 identifications. This is not an identification

22 case. This is a confirmation. Same thing

23 especially with John Ross who knew Adam, ah, Rogers

24 Lacaze and his brother very well as regular

25 customers, and again, that goes to Dysart's

26 testimony that the more -- the more familiar an

27 eyewitness is with someone who they're identifying

28 the more reliable the I.D. is.

29 And that really kind of mutes the importance

30 of Dysart's testimony because the great -- as she

31 acknowledged, the great bulk of her research with

32 some exceptions focuses on stranger

100 1 identifications. This is not a stranger

2 identification case. This is not the first time

3 that Chau Vu or Quoc Vu or especially John Ross had

4 seen Rogers Lacaze. Especially not the first

5 time well, since they didn't see him this

6 time that they had seen Adam Frank. This is not

7 a stranger identification. This is not an area

8 where the testimony of an eyewitness

9 identification -- identification expert really is

10 gonna carry or should carry much weight. Urn

11 Now, I guess while we're on the subject of

12 experts, I want to talk about George Woods and

13 Rex Sparks. Ah, now, I -- I'm -- I'm not really

14 disputing, ah, and we didn't at -- at the hearing

15 dispute George Woods' qualifications as a

16 psychiatrist, but the problem here for Dr. Woods is

17 that he was a psychiatrist in a battle that

18 revolved around psychology, and he admitted that he

19 was not qualified to testify about psychological

20 testing and about psychological assessment, about

21 the design or implementation of psychological

22 intelligence tests.

23 The only psychologist that this Court heard

24 from was James Pinkston, was the State's witness.

25 Now, yes, he did not interview Rogers Lacaze. He

26 did not have to. We don't have the burden. His

27 job was to critique the basis upon which Dr. Woods

28 made his conclusions, and he critiqued them

29 successfully. Ah, he pointed out -- ah, and

30 George Woods relied heavily on Dr. Young'~

31 analysis. She was a psychologist. Why they didn't

32 call Dr. Young, we'd have to ask them. I think it

101 1 probably would have helped their case to have

2 called an actual psychologist when the issue was

3 psychology, because that is objective.

4 As Dr. Pinkston pointed out, Dr. Woods is a

5 psychiatrist. He's a physician. His focus is on

6 helping clients. It's not on taking an objective

7 assessment, ah, which this kind of case calls for.

8 Dr. Young did a fantastic job of over emphasizing

9 evidence, of over hyping, as it were, tasks upon

10 which Lacaze did poorly, ah, almost suppressing

11 tests in which Lacaze did well, even though the

12 tests on which Lacaze did well, as Dr. Pinkston

13 testified, are more reliable for determining

14 functional I.Q. than the ones upon which he did

15 poorly. Of course, that wasn't mentioned by either

16 Dr. Woods or by Dr. Young.

17 Young's report was based not just on exams

18 that, ah -- exams -- some of them were inadequate

19 to reach her conclusions in the outset. Ah, when

20 those conclusions were reached, they were

21 incorrectly interpreted in order to support what

22 appears to be a predetermined diagnosis of mental

23 retardation. Note how Dr. Young signed off her

24 report. It's very telling. She was happy to be

25 able to help the Defense.

26 Now, an objective witness, as Dr. Pinkston

27 said, would say, "Thank you for the opportunity of

28 working on this case. Let me know if I can be of

29 help." Not "I'm happy to help the Defense in this

30 case." That is clearly -- and not talking her

31 qualifications as a psychologist, but clearly she

32 had an interest in this case, and you don't have to

102 1 call her to examine her to tell that. She admits

2 it. She's happy to help the Defense. Dr. Pinkston

3 has no interest in how this case resolves. He said

4 so.

5 Now, and -- and I think the testimony was

6 enough. I don't have to go into individual tests,

7 the -- the -- the TOMM and -- and the WAIS and all

8 that, but I think the record is sufficiently clear

9 and this Court can review the testimony of

10 Dr. Pinkston and Dr. Woods, but clearly there was

11 another failure to -- to prove that Rogers Lacaze

12 is a person who suffers from mental retardation.

13 Ah, in fact, the way that he was described most by

14 Dr. Woods and Dr. Young was in -- severely -- was

15 impaired. Impaired, as Dr. Pinkston pointed out,

16 is not retarded.

17 Ah, now, we've also learned other things about

18 Mr. Lacaze's mental functioning, his adaptive

19 ability, beyond the fact that he's able to sell

20 drugs, ah, beyond the fact that and -- and at a

21 young age. He's able to, from a cell in death row,

22 run an illicit business. Ah, he has more money in

23 his bank account than I do. You know, these are

24 not the actions of someone who is adaptively just

25 incapable, to use an unscientific term. These are

26 ,people -- especially to do it from a cellon death

27 row requires significant adaptive functioning.

28 I mean, their communications are -- you know,

29 we talked about kites, illegal communications

30 between prisoners, ah, and by illegal, obviously,

31 against -- against prison rules, not necessarily

32 statutorily illegal but, ah, to be able to do

103 1 that when certainly that's something that prison

2 officials are looking for -- they monitor mail,

3 stuff like that -- requires a level of adaptive

4 functioning that Mr. Lacaze clearly demonstrates.

5 Ah, it -- it's -- I was actually quite shocked to

6 learn what he could do from prison and certainly

7 does not at all indicate that he is mentally

8 retarded.

9 Now, he -- obviously, there's a lot of talk

10 about what, urn -- and the -- kind of the biggest

11 point -- and this wasn't obviously a litigated

12 issue before the actual hearing -- is a lot of talk

13 about what Mr. Turk didn't do or never did. But

14 you know what? It's really -- and I'm gonna repeat

15 this again from before the hearing. It's impossible

16 to know because the one person we're unable to hear

17 from is Willie Turk, and that's really, ah, from

18 the State's position, unfortunate, and I think it's

19 something that this Court should take into

20 consideration that they could put on as many

21 witnesses as they want to throw Willie Turk under

22 the bus, and they threw him under a whole fleet of

23 buses 'cause they didn't have to fear about any

24 reprisal. Ah, they could put on people, Ben Cohen

25 -- they could -- people could say anything, and

26 they said a lot that ~as not supported. But this

27 Court ~-

28 THE COURT:

29 What makes you think he would have reacted

30 any differently than your characterization of

31 Mr. Jenkins' testimony, or do you think he would

32 have come in and fallen on his sword, too?

104 1 MR. PICKETT:

2 I can't say that. That's the thing. I don't

3 know. We have half the picture here.

4 THE COURT:

5 And the other thing is, is I think you still

6 have a writ application pending in the Supreme

7 Court on that issue.

8 MR. PICKETT:

9 Honestly, this -- I'm just so kind of mentally

10 worn out from the last ten days I can't remember

11 right now.

12 THE COURT:

13 The, ah

14 MS. TAPLIN:

15 Your Honor, that was denied by the Louisiana

16 Supreme Court.

17 MR. PICKETT:

18 Urn, I believe it was denied.

19 THE COURT:

20 I understood that it was the stay that was

21 denied and not necessarily the merits. The whole

22 thing?

23 MS. TAPLIN:

24 The merits was denied.

25 THE COURT:

26 Okay. Well, that's what I needed to know.

27 MR. PICKETT:

28 If Ms. Taplin says that, I have no reason not

29 to believe her. Honestly, I can't remember at the

30 moment.

31 THE COURT:

32 All right. I just wanted to be sure, 'cause

105 1 I've been waiting -- since they waited to the day

2 before the hearing to let us know about the writ

3 that was filed in October, I just was wondering

4 when they would do the other one.

5 MR. PICKETT:

6 I -- actually, your Honor, now I do believe

7 that the merits were denied as well.

8 THE COURT:

9 All right. Okay.

10 MR. PICKETT:

11 But in either event, I still think that went

12 to the admissibility -- that went to the ability to

13 proceed with this claim. That did not address the

14 weight that should be given to that fact by this

15 Court, and I think it should be given some weight.

16 We have -- quite frankly, we have no idea what

17 Mr. Turk's investigation consisted of, what he

18 tried to do, what he didn't try to do. But the

19 thing is, lack of positive proof for a claim does

20 not equal it's negative. Again, they have the

21 burden to prove that he didn't do this.

22 Now, you've had a bunch of witnesses who said

23 they certainly didn't speak very highly of him,

24 but all of them said, well, I can't speak to what

25 Willie did or didn't do in his investigation,

26 because I was not around him all of the time. I

27 mean, much -- lid imagine much of counsel's

28 investigation isn't done running through courtrooms

29 and down the hallway so every other attorney in the

30 planet can see you do it. Urn, you don't bring

31 other attorneys with you when you interview

32 witnesses unless they are, you know, your

106 1 co-counsel. So there was no way for these people

2 to -- these -- these attorneys, Mr. Trenticosta,

3 ah, Mr. Jenkins, to be able to say really what

4 Willie Turk did or didn't do, but what they can

5 look at is the results of what happened at trial,

6 and as welve argued and continued to argue, this

7 is, you know -- and one thing -- John Reed

8 testified -- and something very interesting I

9 noticed Icause he also gave a professional opinion,

10 ah -- that various parts of Willie Turk's

11 investigation and his preparation were not up to,

12 ah, you know, reasonable standards of professional

13 performance, but he kept saying over and over

14 again, well, I can't really say if this prejudiced

15 him. I really canlt say if this affected the

16 trial. I really canlt tell you what the effect of

17 this would have been. In fact, he never once made

18 a determination this changed or there was a

19 reasonable probability that the failure of counsel

20 to do thi~ or that counsel's doing of this affected

21 the outcome of trial. That was never said.

22 Stricklin has two parts. They have yet to -­

23 even if they can arguably -- and it's very arguable

24 -- establish deficient performance, they have

25 failed to present even any evidence of prejudice.

26 Quite frankly, the evidence against Mr. Lacaze was

27 and remains so overwhelming that Perry Mason

28 himself could not have won this. In fact, he

29 wouldnlt have taken it 'cause he only represented

30 innocent people. No lawyer living or dead, past or

31 present, could have received a different outcome

32 than the outcome that happened and the outcome that

107 1 Mr. Lacaze deserved.

2 I'm almost done. Just a few more points.

3 Ah r the penalty phase and mitigation part of this

4 trial r of courser ah r they -- they brought in

5 several witnesses r LaRhonda Whiter um r

6 Pamela Wynne r Gwen Bierria r who knew Rogers very

7 well growing up. Ah r these are people who

8 obviously have known him for a while r have a --

9 have a great interest in helping him. Um r they

10 they said a lot of things -- and this is certainly

11 not attacking them or presuming they are lying r but

12 they -- they said a lot of things that I found very

13 interesting in an attempt tOr ah r to establish

14 mitigating circumstances r ah r both including and

15 not including the aspect of mental retardation.

16 Um r LaRhonda White testified that r ah r he grew

17 uPr ah r certainly without a father -- it's hardly

18 unique -- but with a hard-working r strict mother in

19 a neighborhood that had a lot of close-knit

20 families and nuclear families. Ah r he was teased

21 as a kid. I meanr who wasn't? I was. That

22 doesn't turn you into a killer.

23 Ah r also mentioned that her ah r sold drugs.

24 Ah r didn't indicate that anyone forced him to do

25 that or made him do that. He worked with his

26 brother r but no indication that Michael Lacaze

27 dragged him into that kicking and screaming.

28 There's a lot of ques- -- testimony about his

29 timidity and his willingness to be or ability to be

30 dominated by others, and that was an attempt,

31 obviously, I think, to show that Antoinette Frank

32 really was, ah, the one who, ah, who led his hand

108 1 during this.

2 Which -- which leads to an interesting

3 conundrum in the case. It's kind of the

4 O. J. Simpson, IIWell, if I did it. II

5 completely innocent. I was at Mr. CiS. But if I

6 didn't (sic), I wasn't responsible. Urn, I really

7 think they should have it one way or the other. If

8 we're making a factual assertion he wasn't there,

9 don't make a factual assertion, III was there, but I

10 I was not responsible. II

11 However, they relied a lot on Frank's

12 psychological reports, that -- and they display a

13 large number of bad qualities that make her

14 completely unfit to be a police officer, but not

15 once in those reports is she -- is she listed or

16 described as being manipulative or domineering or

17 controlling. In fact, she was described as being a

18 timid police officer, afraid to pull the trigger.

19 She -- this is not a woman who led him around by

20 the hand. What exactly the breakdown of

21 responsibility was in this case is really I

22 guess will never be known. It can only be

23 speculated. But there is no evidence that

24" Rogers Lacaze was not a full and a willing

25 participant in the robbery of the Kim Anh

26 Restaurant.

27 And here's one thing they cannot get around,

28 every witness agrees on, and there is no evidence

29 to contradict. When the gunshots that felled

30 Officer Williams in the front area dining room

31 behind the bar of the restaurant were fired,

32 Antoinette Frank was in the kitchen, so says

109 1 Chau Vu, so says Quoc Vu. Vui Vu didn't say

2 anything. Antoinette Frank did not murder

3 Ronald Williams based on what we have seen so far

4 here. It had to be Rogers Lacaze. So he killed at

5 least one person, and, no, it wasn't Adam Frank. '" 6 They cannot get around that fact. They want to say

7 he was timid. He pulled the trigger willingly.

8 There's no evidence that Antoinette Frank was there

9 pulling it for him. She wasn't even in the same

10 room.

11 So -- and -- and the -- whatever mitigating

12 evidence might have -- and what it comes down to

13 really is whatever mitigating evidence might have

14 been introduced in this case, there was simply

15 insufficient it is simply insufficient to

16 overcome the aggravating factors in that case,

17 which were proven clearly and convincingly beyond a

18 reasonable doubt. That remains true to this day.

19 They also, especially Ms. Wynne, Ms. Bierria,

20 noted -- Ms. Wynne especially testified that, well,

21 Rogers was a little slow, but, of course, she's not

22 a psychologist. She -- she's not a -- I think she

23 described herself initially as an educational

24 professional. That was quickly shown to be a lie.

25 Um, so maybe they did lie.

26 Um, quite frankly -- now and -- and

27 Gwen Bierria, however, who is an education

28 profession noted -- professional, ah, admitted that

29 Rogers Lacaze was never placed in special education

30 classes. Ah, the teacher said that he was

31 evaluated but that he was never put in special

32 education, and -- and that -- returning to the

110 1 testimony of Dr. Pinkston/ he notes that mental

2 retardation does not simply arise/ so if he's

3 retarded/ he was retarded in school. Ah/

4 consequently/ if he was not mentally retarded at

5 the time/ then he is not mentally retarded at the

6 time he committed the murder.

7 Again/ while their burden is slightly lower on

8 the issue of mental retardation/ they still do

9 carry a burden/ and they've failed to meet that

10 burden. And again/ I think as far as the -- I'm

11 not gonna as a non-expert in psychology/1 1 m not

12 gonna try to re-create the testimony. I think the

13 testimony/ once the Court receives the transcripts/

14 will be quite plain between Dr. Woods and/ ah/

15 Dr. Pinkston.

16 Now/ last thing I want to turn to is/ ah/ he

17 the various -- the kind of -- I will call the

18 remaining ineffective assistance claims as far as

19 motion to suppress/ ah/ the alibi witness. I mean,

20 the suppression issue I still think is -- was

21 was -- was foreclosed by the Supreme Court because

22 there's really been no evidence impeaching the

23 identifications of, ah, either Quoc Vu or Chau Vu

24 at trial. And even if you want to eliminate

25 Chau Vu's -- if you want to disregard Chau Vu's

26 identification altogether, you still have the

27 reliable, valid, unsuggested/ ah/ identification by

28 Quoc Vu.

29 And one of the other elephants in the room of

30 many they cannot get around is John Ross, who knew

31 Adam -- knew Rogers Lacaze very well as a regular

32 customer, ah, testified he did, in fact, observe

111 1 Rogers Lacaze buy gas. In fact, he made a joke to

2 him, IISince when did you get a credit card?1I It

3 shows that he knew Lacaze well enough to know that

4 he didn't have a credit card. He joked -- he was

5 familiar with him enough to feel like he could joke

6 with him. Again, there's no -- there was no

7 evidence put forward that could, ah, undermine the

8 suggestive or the non-suggestiveness or the

9 reliability of this identification. What they put

10 forward is just simply insufficient.

11 Again, this goes to the strength of the

12 State's case. Lacaze is not identified by people

13 who had never seen him before. He was identified

14 by people who had seen him before. In the case of

15 John Ross, who were very familiar with him. He was

16 also identi- -- he was also identified by -- by two

17 people, Quoc and Chau, who were very familiar with

18 Adam Frank and said very explicitly it was not him.

19 You know, they presented alibi witnesses here.

20 Angela Walker, however, didn't present an alibi.

21 In fact, when I asked her if she thought Lacaze did

) 22 not commit the crime, she said, IINo, I'm just

23 saying I was with him at some point during the

24 night. II She didn't specify when. She said it was

25 after midnight at some point. She didn't ever say

26 that she was with him at 1:50 in the morning when

27 he was murdering three people at Kim Anh. It's

28 because she wasn't. Now, she, I will flat out

29 say, was lying.

30 They have failed to impeach Patrick Mazant's

31 testimony. None of them said he wasn't there. Ah,

32 they said at most, well, he was sitting around and

112 1 -- and playing cards and all that. But he

2 testified at trial, and that has been unimpeached,

3 that he could see everything. He knew everyone who

4 was in the bar at the time. He simply said that

5 Rogers Lacaze was not there. Not only did he say

6 Rogers Lacaze was not there that night, he could

7 say exactly why. Because when Michael Lacaze came

8 in, which they both came in regularly, he always

9 came with Rogers, and on that night, Michael Lacaze

10 was alone. It stuck out in his mind.

11 Peter Williams -- and he testified here. He

12 testified at the preliminary hearing. He was not

13 called at trial, and the reason he wasn't called at

14 trial, as the record will show, is that at the

15 preliminary hearing he testified that he -- he was

16 at Mr. CIS with Rogers Lacaze on the night of the

17 murder but that he left at 1:20 in the morning,

18 which is a half hour before the murders, which is a

19 half hour that he cannot account -- he cannot

20 account for. It actually seems like good trial

21 strategy by Mr. Turk not to call an alibi witness

22 who could not provide an alibi.

23 THE COURT:

24 Was it good trial strategy to call him at the

25 preliminary examination where he, ah, established

26 that fact in front of the prosecutor, God, and

27 everybody?

28 MR. PICKETT:

29 Well, in the end, whether or not he would have

30 been better reserved, the only thing you can

31 presume is that he would testify in accordance with

32 -- at trial with how he did at the preliminary

113 1 examination, which means in front of a jury, he

2 would have gotten up there and said, 1I0h, yes, I

3 was with him there until 1:20,11 which would have

4 made it very easy for Ms. Woods -- Mr. Woods and

5 Ms. Teel to come in and argue, IIWhere's the other

6 half an hour?1I So I don't think there was any

7 prejudice because there's -- you have to presume

8 that Peter Williams -- and -- and they actually -­

9 Peter Williams was asked if he would testify the

10 same at trial as he testified, ah, in this hearing.

11 He didn't really say when he was there till on this

12 time, but he acknowledged when I asked him he

13 testified that he testified at the preliminary

14 examination that he left the bar at 1:20, that he

15 would not be able to dispute that. So the only

16 evidence we have is that at trial Peter Williams

17 would have testified, "I was at Mr. CIS with

18 Rogers Lacaze. I left at 1:20. 11 It still would

19 leave a half hour unaccounted for, and they cannot

20 overcome that.

21 Now, if I could just have a minute, I think

22 I've I want to talk about two more things, and I

23 am done. One is Rex Sparks and Timothy Scanlan,

24 and that will be brief because their testimony is

25 obviously quite, ah -- rather fresh in the Court's

26 head, and, ah, I really want to close up on on

27 another aspect of the Adam Frank issue.

28 Now, Rex Sparks, ah -- Rex Sparks, ah, if that

29 is the best expert on crime scene reconstruction

30 they could have presented, I didn't even see why we

31 needed to call Timothy Scanlan, to be honest. Ah,

32 he first of all was not qualified to render half

114 1 the opinions that he made. He made -- and the

2 biggest evidence that he presented or among it was

3 all these shoe imprints, ah, that were found on the

4 scene that NOPD, in his estimation, failed to, ah,

5 note or identify even though, as Colonel Scanlan,

6 who is infinitely more qualified than he is, ah, to

7 manage crime scenes, ah, among other things,

8 testified that that was a skill that he was not

9 qualified for. He was not an impressions, ah,

10 expert. Because blood -- blood pattern analysis is

11 different. He -- Rex Sparks really wasn't talking

12 about a pattern of blood left by a shoe. He was

13 talking about an imprint in the blood.

14 Now, of course, as Colonel Scanlan pointed

15 out, who is a tool mark -- and impression is a

16 sub-, as he testified, is a subset of tool marks

17 ah, there's simply -- there was no evidence that

18 those were shoe prints. And if they were, it's

19 very evident they were post attack. They were left

20 after, ah, Ronnie Williams had been dragged away,

21 after blood from non-beating hearts had poured over

22 the floor, ah, for a certain amount of time, but

23 they simply were not any indication ah, there

24 was nothing that would lead the police to think

25 that those prints, if they -- even more prints were

26 left by the attackers.

27 This was -- like I said, this was a -- a

28 controlled crime scene. This was in, out -- even

29 if they said 15 minutes, still, a rather fast

30 attack. This was not a situation there was no

31 mutual combat. Urn, I think that Mr. Lacaze and,

32 unfortunately, Mr. Sparks seems to have the idea

115 1 that this was, you know -- this is some kind of

2 Hollywood production where blood is just literally

3 painting the walls. As Colonel Scanlan testified,

4 that's simply not what happens in these cases.

5 Urn, the issue of back spatter was

6 conclusively, ah, put to bed by Colonel Scanlan.

7 Again, infinitely more qualified to talk about back

8 spatter than"Rex Sparks. Almost embarrassingly so.

9 Urn, the issue of the reconstruction of the

10 crime scene and -- and -- and of wher~ the --

11 where the shooter had to be standing. I mean,

12 Rex Sparks didn't even follow proper protocol.

13 Timothy Scanlan, Colonel Scanlan, told this Court,

14 you never put an exact "x." You put a range. That

15 no expert worth his salt is going to actually say,

16 "I know a hundred percent certain that he had to be

17 standing here," based on trajectory analysis that

18 he didn't even do.

19 What did -- what did we learn from

20 Colonel Scanlan? There is a possibility that the

21 killer was sitting there. There's a possibility,

22 which he called more likely, that the killer was

23 actually where the State's case put him at the time

24 of trial. Ah -- and, I mean, you simply couldn't

25 draw that exact conclusion that Rex Sparks drew.

26 Unfortunately, again, the mere possibility they

27 could have been standing there is not sufficient

28 for Mr. Lacaze to meet his burden in this case, ah,

29 because especially where that possibility also

30 supports the State's theory at trial and the

31 conclusion to which NOPD came as to where the

32 killer was standing, especially when you look at

116 1 where the shell casings were and understand how

2 they eject from a 9 millimeter Beretta. I -- the

3 attempt to impeach the NOPD's crime scene

4 management, documentation, handling, just -- it

5 just fell apart.

6 Ah, and in the end, if this is the best they

7 could show that Mr. Turk could have done, it would

8 simply not be enough to make the jury give it any

9 weight or to impeach, ah, the handling of the crime

10 scene or the management or the documentation or the

11 conclusions drawn, ah, by the New Orleans Police

12 Department. Ah, and, I mean, especially when the

13 -- the witness they called had never taken a

14 professional competent exam -- competency exam in

15 any of the areas in which he purported to be an

16 expert. I think with Colonel Scanlan and Rex

17 Sparks, I mean, you have a clear winner when it

18 comes to whose testimony to believe and whose

19 testimony to credit.

20 And I think what this really comes down to --

21 and you kind of -- you know, we've been all deep in

22 this for -- for a week and a half, very deep into

23 the facts of this case. You just have -- you have

24 to step back, and you just have to look at what's

25 reasonable. You have to look at the evidence both

26 at the time of trial and that has been uncovered

27 since the time of trial. And you have to relate

28 that to the theories that Mr. Lacaze is putting

29 forth and has to support.

30 Simply put, in order for their theory of the

31 case to stand up and to win out, they have to

32 convince this Court that a jury would have been

117 1 reasonable in concluding that three eyewitnesses or

2 two eyewitnesses who knew Adam Frank and who had

3 seen Rogers Lacaze the night of the murder would

4 mistake the 6'5" behemoth Adam Frank for the 5'3"

5 Rogers Lacaze l if that would have been a reasonable

6 determination and a reasonable mistake where it -­

7 that it would have been reasonable that these -­

8 that Quoc and Chau Vu made that mistake, and that

9 is just simply not even implausible. That is

10 impossible. That is not possible. It certainly is

11 not enough to meet the burden under 930.2.

12 And John Ross is even a bigger loss, because

13 John Ross knew Rogers Lacaze very well, and

14 Rogers Lacaze interestingly was only arrested at

15 his brother's residence three blocks away from

16 John Ross' gas station. There -- this Court has

17 not heard a single shred of evidence supporting

18 their theory that Adam Frank was involved in the

19 Kim Anh murders in any regard.

20 Urn, as much as I appreciate opposing counsel's

21 subjective understanding of what our intention was

22 with calling him, perhaps there's a reason that~

23 they didn't call him. I mean, he is the linchpin

24 to their case as far as guilt, as far as who done

25 it, which is really what this came down to. That's

26 why we had a trial. And yet they didn't even go

27 and talk to him. Perhaps they knew what he would

28 say. Now, they attempted to impeach him, ah,

29 through the secondhand test- -- hearsay testimony

30 of Perry Fleming, who couldn't say anything about

31 Adam Frank's involvement in this case and with the

32 unauthenticated affidavits of a convicted murderer

118 1 from Florida and another inmate, Andre Louis, who

2 they could not even be bothered to bring into court

3 to testify in person. What does that tell you?

4 I mean, with Adam Frank you heard it from the

5 horse's mouth, and you can give his testimony as

6 much weight as you see fit, but 1 1 11 tell you, he

7 testified and admitted some things he didn't have

8 to admit there. He wasn't hiding anything. He

9 simply didn't commit this crime. Rogers Lacaze

10 did. There's simply no evidence that has been put

11 forward that he didn't.

12 I mean -- and I think that really is what this

13 boils down to. There is nothing that Willie Turk

14 could have done -- and we don't definitively know

15 what he did or didn't do, and I think this Court

16 must take that into consideration because you only

17 heard one side of the story, but even only hearing

18 that one side of the story, there's nothing he

19 could have done to have even reasonably -- even

20 present a reasonable possibility of coming back

21 even with a hung jury or a second-degree murder or

22 an attempt first-degree murder. Ah, the evidence

23 was simply and remains simply overwhelming.

24 Rogers Lacaze murdered Ronnie Williams and at the

25 very least helped murder Cuong Vu and Ha Vu. That

26 will never change.

27 There was nothing that Willie Turk could have

28 done to prevent that, to prevent that verdict, and

29 there was nothing in the police report -- which

30 admittedly was not turned over -- there was nothing

31 in the homicide report that was even favorable let

32 alone material to the question of guilt or

119 1 innocence or as far as the sentencing. Ah, there

2 was nothing involving the -- the the -- the gun

3 situation, the mysterious gun is is just a dead

4 end. Ah, they really have presented absolutely

5 nothing. It's been eight -- 18 years is a long

6 time, and and thousands of pages of pleadings

7 and motions, 20 who knows how many witnesses

8 over the course of a week and a half is a long way

9 to come just to end right back -- end up right back

10 where we were in July of 1995. But that is exactly

11 what we have done.

12 Ah, Mr. Lacaze has simply failed to meet his

13 burden under Article 930.2 proving his entitlement

14 to relief either as to the guilty verdict or the

15 sentence of death, and the state respectfully

16 requests that this Court deny his motion for -- his

17 application for post-conviction relief. Thank you.

18 MS. TAPLIN:

19 I will try to be brief, your Honor.

20 We don't want to fundamentally confuse the

21 nature of these proceedings. Urn, we have raised a

22 claim of actual innodence, however, we want to be

23 clear about the standard for ineffective assistance

24 of counsel and Brady claims that we've raised in

25 post conviction. The State seems to suggest that

26 in order to make these claims we would have to

27 prove definitive~y that Adam Frank committed this

28 crime or prove definitively that Rogers Lacaze

29 didn't commit this crime and putting our actual

30 innocence claim aside. That is simply not the

31 standard. The standard is reasonable probability,

32 which is a probability sufficient to undermine

120 1 confidence in the outcome. That is what the

2 standard is.

3 We did not call Adam Frank. I think it was

4 no surprise to anyone in this room that when

5 Adam Frank was called he said he didn't do it. It

6 would be highly unorthodox, I think, if someone was

7 putting on a Defense with an alternate suspect to

8 call that suspect and ask him if he committed this

9 crime. It's pretty clear what his answer would be.

10 Mr. Pickett made the point that

11 Antoinette Frank could not have shot

12 Ronald Williams. I think the point has also

13 been made clearly throughout these proceedings

14 that no one saw who shot Ronald Williams, not a

, \ 15 single person. Mr. Plckett says that we're putting

16 on the O.J. Simpson Defense. I would only point

17 out that O.J. Simpson was found not guilty. But

18 that aside, let's be clear about what our burden is

19 and that what we've made.

20 I want to clarify when this crime was actually

21 committed. 1:51 is, I believe, or 1:49 is when the

22 first 9-1-1 call came in in this case. It's clear

23 that the crime was co~mitted prior to that. It

24 would make sense seeing as the 9-1-1 call came in.

25 Mr. Turk did not put on Peter Williams or

26 Angela Walker despite the fact that they would have

27 rebutted the State's case that Mr. Lacaze wasn't

28 playing pool at all that night. It would have

29 presented reasonable doubt to jurors to hear people

30 say, "I saw him that night playing pool. I saw him

31 at 1:20. I saw him sometime after midnight. I

32 stayed with him till closing." These are people

121 1 who were known to Defense counsel, who he could

2 have put on, who he could have interviewed, and he

3 simply failed to do it.

4 Turning to the claims about jurors, both our

5 misconduct claims, as well as ineffective

6 assistance of counsel. The State did not address

7 -- although we have addressed -- that Ms. Mushatt

8 wasn't simply a member of the NOPD. She wasn't

9 simply a part of this fraternity of officers and

10 civilians. She was, in essence, a witness in this

11 case. She was sitting in the dispatch room when

12 the 9-1-1 call came in. She assisted other

13 dispatchers. She testified that she acted

14 frequently as a supervisor. She was there when

15 this unfurled. I think that everyone would admit

16 that a witness in a case cannot sit as a juror in , 17 judgment, even putting aside her employment with

18 the NOPD, which this Court cannot possibly put

19 aside in a case where it was the murder of an NOPD

20 officer.

21 And perhaps Ms. Mushatt, I think, as she said,

22 attended Ronald Williams' funeral because that's

23 what you did as a department. Forgive me. I don't

24 remember her actual words, but I know that she made

25 the point that it wasn't specifically, maybe out of

26 an alliance with Ronald Williams, but out of an

27 alliance with the department. That's what you do

28 for your co-workers. And this was a case that was

29 the department, the New Orleans Police Department

30 versus Rogers Lacaze. This person just simply

31 wasn't a competent juror, and it's outrageous that

32 she sat there.

122 1 THE COURT:

2 Let me ask you, did Mr. Turk exhaust his

3 peremptories?

4 MS. TAPLIN:

5 Thank you, your Honor. No, he did not. He,

6 in fact, left five peremptory challenges.

7 THE COURT:

8 And the other question that slipped my mind

9 when I was -- before.

10 MS. TAPLIN:

11 Yes.

12 THE COURT:

13 You mentioned the access to the juror list,

14 and they had the occupations on that?

15 MS. TAPLIN:

16 Yes, your Honor.

17 THE COURT:

18 Does this record is it in this record that

19 Mr. Turk had that?

20 MS. TAPLIN:

21 It1s nowhere in the record that Mr. Turk had

22 that. Urn, if he did, his ineffectiveness is even

23 more shocking, but there is no record that he had

24 any access to that. Urn, we were able to obtain

25 that later on in post conviction, but there's no

26 record that he had access to that.

27 THE COURT:

28 Well, my point was, is that you have

29 documented that it did exist, but you don't know

30 whether it was common practice at that time for the

31 attorneys to have that?

32 MS. TAPLIN:

123 1 I certainly couldn't speak to that. Urn, I

2 believe Mr. Reed did speak to that

3 THE COURT:

4 Uh-huh.

5 MS. TAPLIN:

6 that it was common practice at that time.

7 Urn, the list in question is, I believe, the venire

8 for the entire month, urn, and lists all jurors.

9 Mr. Turk had a separate list of just the jurors in

10 this case that didn't reference any identifying

11 information. It was just a strike sheet. Urn, but

12 I can't speak to, you know --

13 THE COURT:

14 All right.

15 MS. TAPLIN:

16 There's nothing in the record to suggest, but

17 the practice was perhaps that he could have.

18 THE COURT:

19 I'm glad that I remembered it before we

20 adjourned.

21 MS. TAPLIN:

22 I want to speak just briefly about the Brady

23 claims. Urn, the State, in its summation, didn't

24 mention the suppression of the statement of

25 Chau Vu, urn, and I think that this· is one of

26 sort of the most shocking Brady violations in this

27 case. Chau Vu and Quoc Vu were both witnesses to

28 the State's case, but if you read their testimony,

29 I think it's clear that Chau Vu was the State's

30 star witness. She spoke for the longest. Urn, she

31 described in very emotional detail what occurred

32 during this crime. Had the jury heard that this

124 1 eyewitness previously stated that she only saw

2 Antoinette Frank when she sat in the cooler -- if

3 you read the entirety of the statement, it is

4 abundantly clear that that is what she's saying

5 it would call the State's case into question. It

6 would put it in a different light. Urn, and I just

7 want to make that abundantly clear.

8 In terms of Stanley Morlier, the State

9 discusses how he had suspicions but that he never

10 brought that to the attention of other officers.

11 First, I would say that Officer Morlier, urn, was a

12 member of the State, and his suspicions were so

13 strong that he, in fact, employed a confidential

14 informant to try to track down Adam Frank. His

15 belief that Adam Frank was involved in this crime

16 was that strong. Other NOPD officers clearly had

17 some suspicions, too, or it is unexplainable why

18 they would ask Officer David Talley so many

19 questions about Adam Frank.

20 Now, I don't know what Stanley Morlier told

21 Officer Richard Marino because there's no record of

22 that entire conversation, just like the interview

23 with OffiCer Talley was not in the NOPD file. We

24 only obtained that through subpoena duces tecum of

25 the Public Integrity Division file.

26 But the State didn't mention two things about

27 Stanley Morlier. One is that he was called as the

28 State's witness at Antoinette Frank's trial.

29 Clearly, the State believed that Officer Morlier

30 had something to contribute to these proceedings, a

31 lot, and what he contributed at Antoinette Frank's

32 trial that he lied about at Rogers Lacaze's trial

125 1 is that he witnessed an argument between

2 Antoinette Frank, Ronnie Williams, and Adam Frank

3 at the Kim Anh Restaurant and that Antoinette Frank

4 threatened to kill Ronnie Williams if he messed

5 with her brother again. That is critical evidence

6 that the State thought was so significant they put

7 it on in their case against Antoinette Frank

8 because it showed motive. It showed prior contact

9 with the victim. It showed a death threat against

10 the victim involving Antoinette Frank's brother.

11 This is the very evidence that Rogers Lacaze tried

12 to put on and yet couldn't.

13 I failed to mention in my final remarks the

14 additional evidence that we have supplemented with

15 I believe it was our second supplement, which was

16 an investigation that was going on into Adam Frank

17 in which Officer Precious Davis reported that

18 Adam Frank had a gun, that Adam Frank had a police

19 radio, and that Adam Frank was riding around with

20 his sister while she was on details -- I'm sorry,

21 while she was on duty. If Rogers Lacaze was able

22 to put these two people side by side, Rogers Lacaze

23 and Adam Frank, who was more likely to have

24 committed this crime with Antoinette Frank, the

25 18-year-old that she only met a few days -- pardon

26 me -- a few months earlier or her trusted brother,

27 her protector with a violent history who is known

28 to be armed, who is known to be riding around with

29 her? Regardless of whether the State had evidence

30 that Rogers Lacaze was also seen riding around with

31 Antoinette Frank, we're talking about putting these

32 two people side by side. Would the result have

126 1 been different? Could it have been different?

2 The State at some point referenced that we

3 have to prove that the jury's decision was

4 irrational. That's not the standard. That's

5 sufficiency of the evidence standard, and that

6 simply is not the standard before this Court.

7 The State asked this Court to discount the

8 testimony of Vui Vu. I do think it's instructive

9 that she wasn't called at trial, although she was

10 equally an eyewitness in this case. The

11 significance of what Ms. Vu said is that it calls

12 into question the eyewitness identifications of the

13 other two. Ms. Vu said that the three of them

14 sitting together on the floor of the cooler, all

15 you could see is shadows, a shadow of a person, and

16 that testimony, if that was put before the jury,

17 would have called into question the identification

18 of Chau Vu, would have called into question the

19 identification of Quoc Vu.

20 Turning to just George Woods' testimony, the

21 State has criticized the neuropsychological

22 testing. Um, we will say that even if this Court

23 were to put aside the neuropsychological testing,

24 it would have no impact on the determination of

25 mental retardation. The I.Q. testing that was done

26 in this case was done by an expert appointed by the

27 Court, certainly not the Defense hack, Dr. Salcedo,

28 and he got a 71 I.Q.

29 If this Court is determining whether there was

30 ineffective assistance of counsel at the penalty

31 phase, the only issue is whether or not this

32 evidence that's put before the Court undermines the

127 1 outcome and the verdict. If this Court is

2 determining the ultimate issue of whether or not

3 Mr. Lacaze is a person with mental retardation,

4 then the burden is only preponderance of the

S evidence.

6 The State may criticize Mr. Lacaze's family

7 members. They're free to do so. They may

8 criticize, urn, his teachers. They may criticize

9 Dr. Woods, but the point is that they told a story,

10 a story that needed to be told to the jury, a story

11 that was never told about Rogers Lacaze. They said

12 that it doesn't outweigh the aggravating

13 circumstances, but we're not in a weighing state,

14 and I think your Honor is well aware of that. lS We've presented eight days of testimony as

16 well as the State, a mountain of pleadings. Urn,

17 the amount of suppressed evidence in this case is

18 shocking. Urn, the amount of evidence that

19 Willie Turk just simply never bothered to find is,

20 urn, inexcusable.

21 I wish I could say more, your Honor, and I

22 think we've all had a long, long week, and so I

23 will stop talking only to say that Mr. Lacaze has

24 met his burden in this case and then some, and I

2S think that's very clear.

26 THE COURT:

27 I want to thank you-all for -­

28 MS. TAPLIN:

29

30

31

32

128