Fifth Circuit: It Wasn't the Sheriff's or the Jailer's Fault that the Defendants Went through Hell on Earth

Did a sheriff falsely imprison two people accused of public intoxication by failing to release them when a hearing to determine whether or not there was probable cause to hold them was not held because a hurricane hit? Did a jailer deny the people access to counsel by not allowing them to use their cell phones to call for legal help? A New Orleans federal jury said "yes." Fifth Circuit Judge Jacques L. Wiener, Jr, writing for a panel including judges Carolyn Dineen King and  E. Grady Jolly, held in Waganfeald v. Gusman  that the answer to each question is "no." Louisiana Code of Criminal Procedure article 230.2(B)(1) says that a defendant shall be released if probable cause to hold a defendant is not found by a magistrate in 48 hours. It does not have an exception for emergencies in its text. The leading Louisiana case interpreting this statute, State v. Wallace, 2009-KK-1621, (11/09/09); 25 So.3d 720, includes an exception for emergencies and extreme circumstances in its decree. This was brought out in oral argument in Waganfeald. The statute codified County of Riverside v. McLaughlin, 500 U.S. 44 (1991), which, in its dicta, includes an exception for emergencies. the Fifth Circuit ended up deciding that there was an emergency exception, and that Hurricane Katrina was an emergency. The Fifth Circuit decided that the jailer had not deprived the defendants of counsel first, because these probable cause hearings were not a "critical stage" of the criminal proceedings, that is, a stage of the proceedings at which the right to counsel had attached and second, because the jailer didn't keep the defendants from accessing the phones, it was just that the phone equipment outside of the jail that the phones were attached to was down, which wasn't the jailer's fault.
In essence, what happened to the defendants was horrific, but being in New Orleans during Katrina was horrific. The Fifth Circuit decided that the horror wasn't because of the sheriff or the jailer.
The complaint in the trial court for this case is here.
The defendants were arrested in August 26, 2005. One was released October 3, 2005, the other October 5, 2005. With the benefit of hindsight, instead of complaining about staying one second after 48 hours, it might have been well-advised to argue in the alternative that the emergency that required their overlong hold did not go on for 37 or 39 days. The plaintiffs' strategy of arguing that the statute admitted of no exception ended up working against them in the appeals court (One of the male appeals court judges appeared hostile to the statute itself as it might be applied to a serial killer.).

Typing Is Important

In a per curiam opinion, Circuit Justices Jerry E. Smith, senior Circuit Justice Jacques L. Wiener, Jr., and Circuit Justice Jennifer Elrod held that after a supplemental trial court hearing that corrected an absurdity in the record-- that the defendant pleaded "not guilty" at his plea bargain setting resulting in a conviction-- could not attack the sufficiency of the evidence against him on appeal. The supplemental hearing showed that the defendant was pleading "no contest" rather than "not guilty." The guilty plea had been structured so as to allow him to challenge the search of his house, which was how the evidence of credit card abuse had been obtained.

Some State Administrative Procedure Tolls Federal Habeas Deadline

Fifth Circuit justice Jerry E. Smith, writing for a panel including Justices Jacques Weiner and Jennifer Elrod, remanded trial court dismissals of habeas corpus petitions because Tex. Gov't Code section 501.0081(b)(1)-(2) bars a state habeas petition for at least 180 days after the filing of a required time-credit dispute-resolution request, which, in turn, tolls the Antiterrorism and Effective Death Penalty Act of 1996.