Is it silly to demand transparency from appellate courts?

We’re always grousing about how courts deny our appeals without reading our briefs, but a recent Supreme Court cert denial showed that’s a heap of ol’ catfish compared to what goes on in Louisiana.

The scandal broke back in May, 2007, with the suicide of a senior clerk in the 5th Circuit Court of Gretna, Louisiana, an intermediate state appellate court.  He left the following note, addressed to “All the Judges” :

For probably the past 10 years, not one criminal writ application filed by an inmate pro se has been reviewed by a Judge on the Court.

I prepared the ruling on each of those writ applications, and they were signed by a Judge without so much as a glance at the application.

In fact, two of the judges on the writ panel never even knew the pro se application was filed, much less aware of the application’s contents.

When the pro se application arrived in the mail, I opened it, prepared a ruling, and sent it to the Clerk’s Office for filing. When the application returned to the Central Staff after filing, the ruling was already prepared. It was typed on the application and the application was signed by a Judge without so much as a glance. The total turnaround time was usually one or two days.

Peterson’s method was to compile a numbered list of fifteen possible reasons for denial. For each pro se writ, he would pick a number, attach it to the writ with a sticky note and send it to Roz and Tina [women court staff never seem to have last names] who would type up the response corresponding to the number.

It was obvious that these pro se criminal writ applications were not being reviewed because of the quick turnaround time. Moreover, although research memos are prepared for counseled criminal writ applications, a research memo for a pro se criminal writ application has not been prepared for probably 10 years.

You were more than content to let me handle all pro se writs so you would not have to bother with them. Also, the large volume of pro se criminal writ applications inflated the Court’s workload figures – even though no judge was involved in the handling of the writ (beyond signing a name).

One other attractive feature of the pro se writ handling system was the money it raised for the Clerk’s Fee Fund. For each pro se writ application in a criminal case, the Court charged and received a fee of $300.00 from the parish where the criminal case was pending. The Clerk’s Fee Fund swelled from the money. 

The court made a total of $75,000 from these writs during the 13-year period this went on.

According to the Louisiana Times-Picayune, the Gretna Court Chief Judge withheld the suicide note from the police until urged by his fellow judges to turn it over.  Because of course, the clerk was smart enough to send it to others. When the sham finally went public, the Louisiana Supreme Court was flooded with complaints from the prisoners whose writs had been decided by number.

The Gretna Court’s response was to ask the Louisiana Supremes to send the petitions back to them “for re-review.” To the same pool of judges involved in the list-and-sticky-note procedure. The Supremes obliged.

You’ll be astonished to learn that none of the writs were granted. This is apparently how the Gretna Court’s “re-review” went:

Chief Judge: Looks like that dirty little sapsucker pissant went and smeared our fine court with some trash talk. We’re not putting up with that, no. We’re going to thoroughly review each and every one of those 300 writs.

Roz and Tina: Mais!*

Chief Judge: That means you ladies go through them and change around the sticky notes.

Roz and Tina: Laissez les bon temps rouler!

*Louisiana-speak for “holy shit.”

Fast-forward to December, 2019, when Louis Schexnayder, serving a life sentence for a dubiously-obtained murder conviction and one of the 300 prisoners whose writs were denied by Roz and Tina, got all the way to the doorstep of the U.S. Supreme Court. Only to be turned away on a technicality. The best he got was a sticky note from Justice Sotomayor saying that the Louisiana Supreme Court’s decision to send the writs back for “re-review” by the same pool of judges “raises serious due process concerns.” Ya think?

How can we be sure the same thing doesn’t go on in our appellate courts?  Even for lawyered-up criminal appeals, the decisions are based on bench memos we never see, written by nameless clerks. We’ve even been told by a retired judge — who thought nothing of it — that if the clerk thinks the conviction should be affirmed s/he drafts the decision. Are they “signed by a Judge without so much as a glance”? How can we possibly know?

Of course our  courts would never stoop to using sticky notes based on a numbered list of reasons for denial. Cutting and pasting is far more efficient.