Opinion writer

The Louisiana Supreme Court received some national ridicule last month for what has now become known as the “lawyer dog” case. In that case, during questioning from police, a suspect replied, “If y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog ’cause this is not what’s up.” The court ruled that the phrase “lawyer dog” was ambiguous and, consequently, the defendant had not invoked his Sixth Amendment right to an attorney.

Much of the national attention focused on the concurring opinion by Justice Scott Crichton. Here’s the relevant part:

In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview and does not violate [the Sixth Amendment].

Crichton’s specific reference to the phrase “lawyer dog” makes it seem that Crichton believes there’s a chance that the defendant was requesting a canine lawyer, instead of merely using the word dog as slang — obviously the more plausible explanation. The opinion brought an onslaught of amusing canine lawyer memes, which nearly obscured the very real problem that the Louisiana Supreme Court had just offered a thoroughly absurd reading of a suspect’s statement to police in order to deny that suspect his Sixth Amendment rights.

But Crichton’s odd judicial behavior apparently extends beyond his visions of basset hound barristers. This week, attorneys for death row inmate David Brown filed a motion before the Louisiana Supreme Court asking that Crichton be recused from hearing and ruling on their client’s appeal. The reason: Crichton has some strong opinions about the death penalty. He also has strong opinions about the rights of prisoners, the right to appeal convictions, and whether various methods of execution constitute cruel and unusual punishment. The problem is that Crichton hasn’t been expressing these views in his judicial opinions, but on Louisiana talk radio. His comments arguably call for his recusal on all death penalty cases. But during one specific appearance on the show, Crichton specifically made reference to a series of cases known as the Angola 5, and stated why he believed those cases were persuasive evidence in favor of death penalty. David Brown is one of the Angola 5. Brown’s attorneys argue, convincingly, that Crichton’s comments indicate he can’t be fair and impartial when ruling on Brown’s appeal.

Crichton is a former prosecutor in Caddo Parish, a particularly death-penalty-enthusiastic part of the state, and the home of some of the state’s more notoriously punitive prosecutors, including Dale Cox and Hugo Holland, the subject of a long exposé published here at The Watch a few weeks ago. Crichton worked in the office primarily in the 1980s before he was elected as a district court judge in 1990. He served there until 2014, when he ran unopposed for a vacant associate justice slot on the Louisiana Supreme Court.

In October, Crichton appeared on the KEEL “Morning Show with Robert and Erin,” broadcast out of Shreveport, to discuss legal issues in the news. At the end of that discussion, one of the hosts asked Crichton if he’d return to discuss the death penalty. He replied, “Yes, I will. And thank you for the invitation. That’s the law and I am sworn to uphold the law. And I believe in the death penalty law. And I have a lot to say about it. So thanks. Yes.”

And does he ever. Here’s what Crichton had to say Oct. 23 about the appeals process in capital cases:

One thing about the death penalty is that the person who is executed … I’m talking about after a grand jury indicts for first degree murder, secondly after a trial jury convicts unanimously for first degree murder, then after a full appeal to the Louisiana Supreme Court, and then the United States Supreme Court. And then, I’m not through yet Robert, still proceeding here. [Laughter.] And then a careful review by the federal courts to see if there are any U.S. constitutional violations. After all that due process, after all that due process some years later, hopefully not too many, if there are no errors in how we got to the penalty of death, it needs to be carried out. And it needs to be publicized. I hate to sound like the grim reaper here on Monday morning at seven.

He added:

I believe if it’s carried out and the public knows about it, I believe it’s truly a deterrent. What really boggles my mind is the inmate who has committed capital murder who is on death row who is begging for his life. Think about the fact that the victim gets no due process . . .

The notion that “the victim gets no due process” is about simplistic and facile as death penalty arguments get. Of course the murder victim never “got due process.” We ensure due process against the accused to ensure that, among other things, the right person is on trial, so that we both don’t convict (or possibly execute) an innocent person, and so the guilty person isn’t free to kill again.

This isn’t a mere theoretical possibility in Louisiana. Eleven men who have been sentenced to die in the state since 1976 were later declared innocent. In nearly all of those cases, the wrongly convicted spent years, sometimes decades, fighting the conviction. In several cases, death warrants had been issued.

As of 2016, Louisiana had 128 death sentences overturned. The reasons for those rulings were overwhelmingly either prosecutor misconduct or inadequate defense counsel for the accused. If you include non-death-penalty cases, Louisiana has the highest rate of overturned convictions in the country. One of the the state’s more recent exonerees spent nearly 46 years in prison for a rape he did not commit.

But for Crichton, the problem isn’t wrongful convictions; it’s that the state isn’t executing people quickly enough. Back in 2014, Crichton lamented that the state didn’t have an “express lane” for executions.

On the other hand, you have this capital defendant, as we call them, charged with first degree murder. And they are begging for their lives. But my view on the death penalty is that it is warranted in those extreme cases and should be carried out. The problem I have with it is that it is not carried out for some odd reason. And I really want to devote some time later in the next decade to trying to understand and do something about this delay between conviction and execution. We have not had very many executions in Louisiana. The state of Texas, meanwhile, has an express line. And they do get it done. I think that the death penalty is warranted and totally appropriate in those extreme cases but needs to be carried out.

Earlier this year, the Louisiana legislature considered a bill to abolish the death penalty. Crichton wasn’t happy. From an April interview with radio host Tom Pace:

There is a bill Tom, I shudder to even talk about this, but there’s a bill before the Louisiana legislature to abolish the death penalty. In fact, there are two bills. And I am adamantly against those. The problem is that I don’t get to vote cause I’m not a legislator. But let’s talk to our legislative friends. Because the death penalty is important in our law.

Crichton then, again, contrasted the death penalty in Louisiana with the death penalty in Texas:

The problem with it is its not being promptly carried out in the state of Louisiana. Now in Texas next door, they have an express line, you see. They don’t have a waiting line of 80 people on death row, doing whatever it is they’re doing at taxpayer expense. They have an express line and they actually carry it out.

Crichton and the radio host Pace have also mocked arguments that the lethal injection cocktail used in many states causes unnecessary pain and suffering, further lamented the right of prisoners to appeal their convictions, and ridiculed the idea that prisons without air conditioning are a form of cruel and unusual punishment. (The heat index in Louisiana prisons can top 110 degrees in the summer, and according to the Marshall Project at least 20 people have died in Texas prisons since 1998 because of heat exposure.) Crichton also expressed opinions on Glenn Ford, the Louisiana man who served nearly 30 years on death row before he was exonerated and released from prison in 2014. The man who prosecuted Ford, Marty Stroud, later wrote a moving apology to Ford in the Shreveport newspaper. Ford died of cancer. He was never compensated for his time in prison. On the radio show, Crichton said “there was nothing ‘innocent’ about” Ford.

Crichton also complained about a murder case he handled back when he was a prosecutor. “He’s been on this crazy post-conviction relief status,” Crichton said of the defendant. “He had 18 years of that in the state system, which is absurd, obscene, and hideous.”

Consider the case of John Thompson, who spent 14 years on death row before he was finally exonerated. He survived eight death warrants. Ford, of course, spent 30 years on death row. They and quite a few other exonerees would likely be dead if Crichton had his way. Perhaps more to the point — it also seems likely we’d also have never known that they were innocent.

Perhaps most surprisingly, Crichton has also publicly discussed his opinions about the Angola 5, a group of men already serving time for other serious crimes who killed a prison guard in 1999. All five could potentially have appeals or post-conviction petitions before the state supreme court in the future. One whose case is currently before the court is David Brown, who may well be the least culpable of the five. I briefly described Brown’s case in my long report on former Caddo Parish prosecutor Hugo Holland.

Holland was brought in as a special prosecutor to try the case in 2011. In June of that year, Holland and another prosecutor interviewed an inmate who told them that two of the five men had admitted to him that they acted alone in killing the guard — that Brown had no part in the murder. That interview was never turned over to Brown’s attorneys.

Holland went on to win a conviction and death sentence for Brown, who was already serving a life sentence for a separate second-degree murder committed in 1992. In 2014, a state judge overturned Brown’s death sentence, citing the state’s failure to turn over the interview. Holland and the state appealed, and eventually won at the Louisiana Supreme Court, which held that the interview wasn’t material to Brown’s conviction and death sentence. The court found that the jury likely would have convicted even if they had been made aware of the interview.

This brings us back to Justice Crichton. When he was asked on KEEL in October if he believed the death penalty is a deterrent, Crichton answered:

I do . . . I think it’s a deterrent . . . I just heard on the news this morning about a case in Texas involving an inmate who was convicted serving a life sentence who beat a guard to death. Somehow got out of his handcuffs and literally beat him to death . . . With a pipe. Initially with his fists. And then with a pipe. And then we had recently the Angola 5 in South Louisiana.

The radio host responded, “If you’re in for life you have nothing to lose,” to which Crichton responded, “Correct.”

Just Tuesday, in response to the filing from Brown’s attorneys, Crichton recused himself from Brown’s case.

That’s a start. In the 1994 case Liteky v. United States, the U.S. Supreme Court ruled on another case in which a judge’s comments outside the courtroom demanded recusal in a criminal case. Writing for the majority, Justice Antonin Scalia wrote that a judge should “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Crichton’s bio page notes that he “serves on the Supreme Court Committee on Judicial Ethics and is a frequent lecturer throughout the state on Ethics.” Given his broader comments on the death penalty and his on-the-record disdain for the appeals process, that expertise in ethics is going to be tested. Because it seems likely that Crichton will be asked to recuse himself from a lot more cases.