STATE v. BARTHOLOMEW (2020)

Writ Not Considered.

I would deny the defendant's writ application on the merits rather than treat it as untimely and not consider it. The defendant's counsel's efforts to file his writ application at the eleventh hour failed because he could not successfully operate the Court's electronic filing system. The defendant, who has been sentenced to spend forty years in prison without parole, should not suffer because of his counsel's shortcomings.¹ This counsel's shortcomings will continue to have a detrimental effect on the defendant if this Court declines to consider the writ. This incarcerated defendant surely did not choose his counsel with an understanding that counsel was technologically challenged and that this might cause him to miss a deadline.

Counsel's brief claims that the defendant was convicted by a non-unanimous jury and suggests, without raising as a claim, that trial counsel should have preserved an objection to the non-unanimous verdict. As I explained in my dissent in State v. Hodge, 19-KA-0568 and 19-KA-0569 (La. 11/19/19), 286 So.3d 1023, 2019 WL 6870107, I believe the evidence is now clear that Louisiana's non-unanimous jury scheme that originated with Louisiana's 1898 Constitutional Convention, has racist origins and continues to have a racially disparate effect today. Therefore I believe that non-unanimous jury verdicts violate the Equal Protection clause. However, this Court cannot consider this issue since it was not raised in the district court. As I see no merit in defendant's other assignments of error, I would deny the defendant's writ application.

FOOTNOTES

1.   Defense counsel's performance in this case is not the first time this Court has had concerns about the standard of representation being afforded this counsel's clients. See State v. Hickman, 17-0142 (La. 9/29/17), 227 So.3d 246, 246–47 (Crichton, J., additionally concurring and assigning reasons).