                         Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE                                         NEWS RELEASE #021


FROM: CLERK OF SUPREME COURT OF LOUISIANA



The Opinions handed down on the 1st day of May, 2018, are as follows:



PER CURIAM:


2016-KP-1100      STATE OF LOUISIANA v. LEROY JACKSON (Parish of Orleans)

                  The only real question here is whether counsel’s deficient
                  performance prejudiced defendant. We find it clear that it did.
                  There are stark contrasts between the witnesses’ descriptions of
                  the robber’s complexion, hair, height, and weight, and those
                  characteristics of the defendant. Furthermore, the convictions
                  rested solely on the witness identifications, which went
                  virtually unchallenged at trial. The likelihood of a different
                  result if that information had been used at trial in a case with
                  no other evidence linking defendant to the crimes is more than
                  conceivable; it is substantial. Therefore, we find it sufficient
                  to undermine confidence in the outcome. We reverse the court of
                  appeal and reinstate the district court’s ruling that granted
                  defendant a new trial. The matter is remanded to the district
                  court for further proceedings.

                  REVERSED AND REMANDED.

                  WEIMER, J., concurs in the result.
                  GUIDRY, J., dissents and assigns reasons.
                  CLARK, J., dissents.
                  CRICHTON, J., additionally concurs and assigns reasons.
05/01/18


                        SUPREME COURT OF LOUISIANA


                                     No. 2016-KP-1100

                                STATE OF LOUISIANA

                                          VERSUS

                                    LEROY JACKSON


           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
                 FOURTH CIRCUIT PARISH OF ORLEANS



PER CURIAM

       Defendant was found guilty of armed robbery and two counts of attempted

armed robbery based solely on his identification by the two victims, Adrian

Maldonado and Wilson Vargas, and an eyewitness to the crimes, Anibal

Maldonado. The offenses were committed on August 15, 2009, by three armed

men. Two of the men wore masks. Defendant was identified as the unmasked man

after the witnesses collaborated with an officer to make a computerized composite

of a dark-skinned man with short hair and a distinctive hairline. A detective

proposed placing defendant in a photographic lineup based on the composite. The

three witnesses then each identified defendant from a photographic lineup.

       The two victims expressed uncertainty, however, in their identifications to a

defense investigator. Vargas told the investigator that the unmasked man was light-

skinned with a distinctive hairline, 1 and that he had picked out defendant from

police photographs as a man who “looked a lot like the person who’d robbed


       1
          Specifically, Vargas stated, “The third man was much lighter-skinned than the other two
and also had short hair. I also remember that the light-skinned black man had a very distinctive
hairline because it was very long, all down the sides of his face.”
[him].” When asked to express his certainty in the identification on a scale of one

to ten, Vargas chose a five. Adrian Maldonado described the unmasked man as

light-skinned with short hair, and expressed his confidence on the ten-point scale

as a five. In addition, Adrian Maldonado stated that it was difficult to make an

identification because “all black people look alike” to him.

      Although the defense investigator provided these statements to defense

counsel, he did not use them at trial. In addition, defendant’s head was clean-

shaven at the time of the crimes and had been since 2007, as evidenced by

photographs and testimony presented at the evidentiary hearing. 2 Furthermore, the

witnesses described the unmasked robber as standing approximately five feet nine

inches tall and weighing approximately 180 pounds. According to the arrest

register, defendant stands five feet seven inches tall and weighs 152 pounds.

Nonetheless, counsel conceded at the evidentiary hearing that he did not use the

discrepancies between the robber’s complexion, hair, height, and weight, and his

client, and counsel was unable to recall why he failed to use the witnesses’

statements to undermine their identifications.

      After defendant was found guilty by the jury, the district court sentenced

him to 50 years imprisonment at hard labor as a second-felony offender for armed

robbery, and two terms of 24 years imprisonment at hard labor for attempted

armed robbery, with the sentences to run concurrently and without benefit of

parole, probation, or suspension of sentence. The court of appeal affirmed. State v.

Jackson, 10-1633 (La. App. 4 Cir. 10/12/11), 76 So.3d 602, writ denied, 11-2528

(La. 3/30/12), 85 So.3d 116.

      Defendant timely sought relief on collateral review on the ground of


      2
         A picture of defendant taken before 2007 was used in the photographic lineup.
Additionally, defendant was the only individual in the lineup wearing a white sleeveless
undershirt, as opposed to a short-sleeve shirt.
                                           2
ineffective assistance of counsel. After conducting an evidentiary hearing, the

district court granted defendant a new trial. In ruling, the district court emphasized

the problematic nature of cross-racial identifications, and the strong indications

here that the identifications were unreliable. A divided panel of the court of appeal

granted the state’s writ application and reinstated the convictions and sentences.

The majority found that defendant had failed to carry his burden under Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) of showing

that he was prejudiced by counsel’s error. State v. Jackson, 15-1358 (La. App. 4

Cir. 5/16/16) (unpub’d). Judge Jenkins dissented, emphasizing that the

identification testimony presented by the state was the “sole evidence linking

defendant to the crimes,” and that defense counsel possessed statements from the

two victims, which “conflict[ed], and even contradict[ed], the original police report

narrative, the supplemental police report, and the victims’ testimony.” Id., 15-

1358, p. 3 (Jenkins, J., dissenting). Therefore, the dissent would deny the state’s

writ application and leave the district court’s order that granted defendant a new

trial intact. We agree with Judge Jenkins.

      “The Sixth Amendment, applicable to the States by the terms of the

Fourteenth Amendment, provides that the accused shall have the assistance of

counsel in all criminal prosecutions.” Missouri v. Frye, 566 U.S. 134, 138, 132

S.Ct. 1399, 1404, 182 L.Ed.2d 379 (2012). The United States Supreme Court has

long recognized that the right to counsel is the right to the effective assistance of

counsel. See McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449,

25 L.Ed.2d 763 (1970) (citing Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100

L.Ed. 77 (1955); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680

(1942); Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940);

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). Claims of

                                          3
ineffective assistance of counsel are generally governed by the standard set forth

by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984), and adopted by this Court in State v. Washington, 491

So.2d 1337, 1339 (La. 7/18/86).

      To prevail on such a claim, a defendant must first show that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland, 466

U.S. at 687–88, 104 S.Ct. at 2064. The Supreme Court further noted that “[a]n

error by counsel, even if professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error has no effect on the

judgment.” Id., 466 U.S. at 691, 104 S.Ct. at 2066. Additionally, the Court

reasoned “[t]he purpose of the Sixth Amendment guarantee of counsel is to ensure

that a defendant has the assistance necessary to justify reliance on the outcome of

the proceeding. Accordingly, any deficiencies in counsel’s performance must be

prejudicial to the defense in order to constitute ineffective assistance under the

Constitution.” Id., 466 U.S. at 691–92, 104 S.Ct. at 2067. Thus, the Strickland

court held that the “defendant must [also] show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id., 466 U.S. at 694, 104 S.Ct.

at 2066. The court further explained that in making a determination of

ineffectiveness of counsel, “the ultimate focus of inquiry must be on the

fundamental fairness of the proceeding whose result is being challenged. In every

case the court should be concerned with whether, despite the strong presumption of

reliability, the result of the particular proceeding is unreliable because of a

breakdown in the adversarial process that our system counts on to produce just

results.” Id., 466 U.S. at 696, 104 S.Ct. at 2053–54.

                                          4
       The state here suggests without evidence that the defense investigator may

have pressured the witnesses to recant their identifications, mischaracterized what

they said when transcribing it, or otherwise obstructed justice, State’s brief at p. 12,

and further speculates that counsel may have chosen not to use the information

obtained by the investigator for that reason. Thus, the state, in essence, proposes

that counsel might have acted strategically to conceal the investigator’s misconduct

rather than committed professional error. This conjecture does not merit serious

consideration, and (if true) could provide further evidence of a failure in the

representation. Instead, it seems clear counsel’s representation fell below an

objective standard of reasonableness. Counsel was provided with information that

undermined the witness identifications, in a case that rested entirely on the witness

identifications, but did not use it.

       In addition, the state faults the district court for considering the strong

indicia here that the identifications were unreliable, and further faults the court for

seizing on the cross-racial nature of the identifications. Courts, however, have

recognized that “centuries of experience in the administration of criminal justice

have shown that convictions based solely on testimony that identifies a defendant

previously unknown to the witness is highly suspect,” and that, “[o]f all the various

kinds of evidence[,] it is the least reliable, especially where unsupported by

corroborating evidence.” See, e.g., Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir.

1978); see also United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933, 18

L.Ed.2d 1149 (1967) (“[T]he annals of criminal law are rife with instances of

mistaken identification. [As] Mr. Justice Frankfurter once said: ‘What is the worth

of identification testimony even when uncontradicted? The identification of

strangers is proverbially untrustworthy.’”). Scholars and judges alike have

commented that the inherent risk of misidentification is generally exacerbated by

                                           5
the compelling nature of eyewitness testimony: “there is almost nothing more

convincing than a live human being who takes the stand, points a finger at the

defendant, and says[,] ‘That’s the one!’” Elizabeth F. Loftus, Eyewitness

Testimony 19 (1979). As Justice Brennan put it, “eyewitness identification

evidence has a powerful impact on juries. Juries seem most receptive to, and not

inclined to discredit, testimony of a witness who states that he saw the defendant

commit the crime.” Watkins v. Sowders, 449 U.S. 341, 352, 101 S.Ct. 654, 661, 66

L.Ed.2d 549 (1981) (Brennan, J., dissenting). Furthermore, cross-racial

identifications have, in the words of the Fifth Circuit, been “demonstrated to be

particularly unreliable.” Gonzales v. Thaler, 643 F.3d 425, 432 (5th Cir. 2011).

      The only real question here is whether counsel’s deficient performance

prejudiced defendant. We find it clear that it did. The United States Supreme Court

instructed in Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624

(2011) as follows:

      In assessing prejudice under Strickland, the question is not whether a
      court can be certain counsel’s performance had no effect on the
      outcome or whether it is possible a reasonable doubt might have been
      established if counsel acted differently. Instead, Strickland asks
      whether it is reasonably likely the result would have been different.
      This does not require a showing that counsel’s actions more likely
      than not altered the outcome, but the difference between Strickland’s
      prejudice standard and a more-probable-than-not standard is slight and
      matters only in the rarest case. The likelihood of a different result
      must be substantial, not just conceivable.

Richter, 562 U.S. at 111–12, 131 S.Ct. at 791–92 (internal citations and quotation

marks omitted). Here, there are stark contrasts between the witnesses’ descriptions

of the robber’s complexion, hair, height, and weight, and those characteristics of

the defendant. Furthermore, the convictions rested solely on the witness

identifications, which went virtually unchallenged at trial. The likelihood of a

different result if that information had been used at trial in a case with no other


                                         6
evidence linking defendant to the crimes is more than conceivable; it is substantial.

Therefore, we find it sufficient to undermine confidence in the outcome. We

reverse the court of appeal and reinstate the district court’s ruling that granted

defendant a new trial. The matter is remanded to the district court for further

proceedings.

REVERSED AND REMANDED




                                         7
05/01/18

                      SUPREME COURT OF LOUISIANA

                                 No. 2016-KP-1100

                             STATE OF LOUISIANA

                                      VERSUS

                                LEROY JACKSON

           ON WRIT OF CERTIORARI TO THE COURT OF APPEAL
                FOURTH CIRCUIT, PARISH OF ORLEANS

GUIDRY, Justice, dissents and assigns reasons.

      Under the standard for ineffective assistance of counsel set out in Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), adopted by this court in State

v. Washington, 491 So.2d 1337, 1339 (La. 1986), a reviewing court must reverse a

conviction if the defendant establishes his counsel’s performance fell below an

objective standard of reasonableness under prevailing professional norms, and the

inadequate performance prejudiced defendant to the extent that the trial was rendered

unfair and the verdict suspect. While defendant’s trial counsel may have erred in

failing to pursue at trial information provided earlier by the defense investigator, the

defendant has failed to satisfy his burden of proving prejudice by any alleged error.

As correctly noted by the court of appeal when it reversed the trial court’s ruling

granting the defendant a new trial, the record reveals each of the three robbery victims

assisted the law enforcement sketch artist with the preparation of a composite sketch

of the assailant. Each victim selected the defendant as his assailant in a photographic

lineup. Moreover, each of the victims identified in open court the defendant as his

assailant. In addition to the defendant’s presence at trial, the composite sketch and

photographic line-up were presented to the jury for their consideration of whether the

victims’ identifications were reasonable under the given facts. For these reasons, I
would affirm the ruling of the court of appeal.




                                         2
05/01/18

                     SUPREME COURT OF LOUISIANA

                                No. 2016-KP-1100

                            STATE OF LOUISIANA

                                     VERSUS

                               LEROY JACKSON

        ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
             FOURTH CIRCUIT, PARISH OF ORLEANS


Crichton, J., additionally concurs and assigns reasons.

      I agree with the majority opinion, and write separately only to note that this

case presents unique facts that led to unreliable identifications made by the victim

eyewitnesses. However, the case should not be interpreted to corrode the value of

eyewitness testimony as competent direct evidence in Louisiana.
