Court: Supreme Court of Louisiana; December 2, 2003; Louisiana; State Supreme Court
The Supreme Court of Louisiana reversed the convictions and death sentence of Thomas F. Cisco for three counts of first degree murder due to a violation of his Sixth Amendment right to conflict-free representation. Cisco was represented by attorney Evelyn M. Oubre, who simultaneously represented Deputy Sheriff Donald "Lucky" DeLouche, the lead investigator in Cisco's case. DeLouche had been involved in the investigation of a triple homicide at a convenience store, which ultimately led to Cisco’s arrest more than a year later. Oubre failed to disclose the nature and details of her representation of DeLouche, which raised concerns about potential conflicts of interest. A local attorney had expressed alarm over Oubre's dual representation in a letter to the district court, noting that the sealed nature of DeLouche’s domestic case prevented full disclosure of potential conflicts to Cisco. The letter's contents were not shared with Cisco, and no inquiry into these concerns was made by the court or Oubre. The court concluded that Cisco did not knowingly and intelligently waive his right to conflict-free counsel, necessitating the reversal of his convictions and sentence.
Deputy DeLouche played a significant role in the investigation of the murders at KK's Corner in Calcasieu Parish, where three victims were killed during an armed robbery. Despite the belief that multiple individuals were involved, only the defendant has been arrested, with no physical evidence linking him or others to the crime scene. The prosecution's case relied heavily on the defendant's multiple statements—nineteen of which were presented at trial—that contained contradictions and were mostly obtained by DeLouche. The defendant's changing accounts raised concerns about reliability, leading DeLouche to express hesitance regarding arrests based solely on the defendant's testimony.
Key evidence included the testimony of Virginia Johnson, who identified the defendant in a line-up conducted by DeLouche without the defense counsel present, despite previously being unable to provide a detailed description of the second man involved. Johnson's identification was called into question due to inconsistencies in her prior statements, some of which were given under hypnosis.
The defense argued that the defendant's false confessions were influenced by his lack of a stable self-identity and a turbulent upbringing, exacerbated by long-term substance abuse. The defense also sought to challenge the reliability of Johnson’s identification. The murders remained unsolved for over a year, prompting extensive investigative efforts, including assistance from the FBI and substantial rewards for information leading to arrests.
Deputy DeLouche served as the lead investigator for the VCTF and was a crucial witness for the State during the trial. Nearly a year after the crime, the investigation into Thomas Frank Cisco, a friend of one of the victims, began. In May 1998, during initial questioning by FBI agents, Cisco denied involvement but made suspicious claims. When re-interviewed three months later, he was informed that his alibi for the 4th of July weekend in 1997 was unverifiable. Over five and a half hours, he provided four inconsistent statements regarding the crime, including implicating himself and Robert Thigpen. Cisco, who had seen a TV broadcast about the murders and showed emotional responses, provided conflicting details about his involvement.
Despite warnings of arrest, Cisco consented to be flown to Deputy DeLouche in Lake Charles. Upon meeting, they discussed their past, and Cisco attempted to identify locations related to the crime. However, he incorrectly directed investigators to a non-operational bus station and failed to locate Thigpen's residence. When these discrepancies were highlighted, DeLouche secured another incriminating statement from Cisco, who continued to implicate Thigpen. Cisco was subsequently arrested for armed robbery.
The following day, DeLouche’s team located Thigpen, who had an alibi that matched the timeline of the crime. During further interviews, the team accused Cisco of minimizing his involvement or covering for others. Cisco requested to speak with DeLouche privately but maintained his denial of involvement in the killings. Under pressure, he later claimed sole responsibility for the crimes but began expressing a need for legal counsel. After consulting with the district attorney, DeLouche returned to Cisco, who agreed to guide DeLouche to a hotel where he had stayed for work in 1996. Arrest warrants were then prepared, leading to Cisco's transfer to the Calcasieu Parish jail, where he was isolated. On August 30, 1998, Cisco requested to speak with DeLouche, who postponed the meeting until August 31, when Cisco admitted his involvement in the robbery and murders.
DeLouche inquired with the defendant about a gun and a missing videotape, asking if the defendant would show him where these items were disposed of. Later, the defendant requested to speak with DeLouche again and recanted his earlier incriminating statements. Following this, DeLouche obtained another video-taped inculpatory statement after consulting with the district attorney. On September 1, 1998, attorney Oubre was appointed to represent the defendant but was on vacation and unavailable for a week. Despite her absence, DeLouche proceeded with a physical line-up on September 1, where Virginia Johnson identified the defendant as the person involved in an incident at a convenience store.
Oubre first communicated with the defendant on September 14, 1998, and on September 16, identified a potential conflict of interest due to her representation of both the defendant and Deputy DeLouche. She assured the defendant of no conflict but allowed him to decide whether to continue with her as counsel. During a hearing on September 24, Oubre informed the court about her dual representation and presented a signed document from the defendant acknowledging the situation. The trial judge expressed concerns about the implications of Oubre's simultaneous representation, particularly regarding her ability to cross-examine Deputy DeLouche effectively, noting potential conflicts in how aggressively she might advocate for the defendant. The defendant confirmed that he understood Oubre's letter regarding the conflict of interest.
Concerns were raised about whether the defendant's rights might be compromised due to defense counsel Oubre's dual representation of both the defendant and Deputy DeLouche. The court confirmed that the defendant, who left school in the eleventh grade, was articulate and understood the proceedings. It ultimately allowed Oubre to continue representing the defendant, leaving the determination of any conflict of interest largely to the defendant's discretion.
The issue of Oubre's dual representation became prominent during the defendant's arraignment on October 13, 1998, before Judge Minaldi. Oubre inquired about the status of co-counsel LaVern, given potential conflicts, and Judge Minaldi acknowledged the need for a more thorough inquiry into the conflicts. While she expressed concerns about LaVern's continued representation, she felt confident about Oubre's role without having conducted a formal hearing on the matter. LaVern withdrew three days later, on October 16, 1998.
There is no record of a hearing to clarify Oubre's dual representation or the defendant's understanding of the potential conflict. Following this, the defendant and DeLouche had no contact for several months, until the defendant reached out on January 20, 1999, expressing a desire to communicate. DeLouche initially sent other Task Force members to meet with the defendant but later visited him personally. During this meeting, the defendant expressed feelings of isolation and requested medication for depression. They discussed whether to inform Oubre about their meeting, but the defendant ultimately decided against it.
The defendant then made a new statement implicating himself and two others in the killings, agreeing to lead DeLouche to the location where he disposed of evidence. On January 27, 1999, the Task Force picked up the defendant for further questioning, and when asked about informing Oubre, the defendant deemed it unnecessary.
The defendant made several incriminating statements regarding his involvement in a shooting and robbery. At the Bonnet Carre Spillway, he admitted on tape to being the shooter and mentioned a fourth participant. On January 28, 1999, he sent a letter to Deputy DeLouche, which was delivered by jail chaplain Russell Fleig. The following day, the defendant provided another statement, identifying Chris Cabral as the fourth person involved in the crimes. Deputy DeLouche also obtained the defendant's waivers of confidentiality from Chaplain Fleig and Dr. Terry Welke, the jail's medical director and coroner of the victims. Fleig testified that the defendant expressed a desire to confess and admitted to shooting the victims while attempting to obtain money for drugs. The defendant ceased meetings with Fleig in March 1999.
Dr. Welke recounted that the defendant confessed to him about shooting the victims while seeking drug money. On March 18, 1999, the defendant approached Deputy Corey Manuel, requesting to make a recorded statement, which led to allegations involving Richard McElveen, the son of Sheriff Wayne McElveen, who allegedly paid the defendant to kill Stacie Reeves, linked to a drug-related death involving McElveen. The Sheriff’s Office had previously ruled this death a suicide, which Reeves disputed.
In May 1999, the defendant wrote a letter to a former girlfriend, Sharon Latino, indicating he would accept his fate but denied his involvement in other communications with her. On May 19, 1999, he made further incriminating statements to Deputy Christina Lyons, who recorded him without his knowledge, where he discussed his involvement in the crime and referred to himself as a hero.
Defendant was isolated for contacting a television station while in jail. Over a year after both judges were informed of defense counsel Oubre's dual representation of him and co-defendant DeLouche, Oubre revealed in court that the defendant had written allegations of collusion between her and DeLouche. Judge Minaldi, disturbed by this revelation, questioned the defendant, who affirmed his desire for Oubre to continue representing him, without addressing the collusion allegations. Eleven months later, the defendant was tried, resulting in a guilty verdict and a death sentence.
On appeal, the defendant argued that Oubre had a conflict of interest due to representing DeLouche in unrelated civil and family law matters, undermining the effectiveness of his legal counsel. The right to effective counsel is fundamental in criminal proceedings, and Louisiana law stipulates that an attorney with an actual conflict of interest cannot provide effective legal assistance. Conflicts can arise from joint representation or when an attorney cross-examines a former or current client. To mitigate such conflicts, courts must either appoint separate counsel or ensure the conflict's risk is minimal. Failure to address an actual conflict warrants reversal of a conviction, and the defendant does not need to demonstrate prejudice if a conflict exists.
Determination is needed regarding the existence of an actual conflict of interest and whether the defendant knowingly waived his right to conflict-free counsel, alongside assessing the trial court's actions to ensure such representation. An actual conflict arises when a defense attorney has obligations to a party with interests that oppose those of the defendant, particularly if the attorney must take actions detrimental to the other client. Precedents indicate that an attorney cross-examining a current or former client, who is a prosecution witness, creates an actual conflict. In this case, a conflict was identified when the state called a former client of the defense counsel to testify, placing counsel in a position where she had to protect the former client's confidences while defending the defendant. Historical cases, such as State v. Carmouche, highlighted that a failure to address such conflicts can violate a defendant’s Sixth Amendment rights. Here, the defense counsel's dual representation raised sufficient concern to warrant a discussion with the trial court and an attempt to obtain a written waiver from the defendant, though the specifics of her representation of the prosecution's witness remain unclear. This situation indicates a need for similar corrective actions as those mandated in Carmouche, potentially leading to a reversal of the conviction due to inadequate protection of the defendant’s rights.
Judge Godwin identified a conflict of interest stemming from defense counsel's simultaneous representation of the defendant and a key prosecution witness, Deputy DeLouche. However, neither Judge Godwin nor Judge Minaldi took necessary steps to assess the conflict’s significance, failing to inquire about the specifics of counsel's representation of Deputy DeLouche and his wife. Consequently, Judge Godwin sought a waiver of conflict-free counsel from the defendant without fully informing him of the implications of the conflict. The record indicates that Judge Minaldi did not adequately protect the defendant's rights either, as there was no documentation of a necessary hearing to address the conflict. Given that both judges acknowledged the need for a waiver due to the dual representation and that Deputy DeLouche would be a critical witness against the defendant, it’s concluded that an actual conflict of interest existed. Following established legal precedent, once a conflict is identified, the judge is obligated to either appoint new counsel or determine whether the conflict is significant enough to warrant such action. Specifically, the judge must require counsel to disclose the conflict, explain it to the defendant, inform him of his right to conflict-free representation, and document any waiver made by the defendant.
The trial judge must safeguard the defendant's Sixth Amendment rights, particularly when a defendant wishes to continue with conflicted counsel. Courts have an obligation to uphold ethical standards and ensure fairness in legal proceedings, as established in Wheat v. United States. A defendant's ability to waive conflicts is limited; a trial judge can disqualify counsel if a conflict risks inadequate representation or undermines the court's integrity, as seen in United States v. Fulton. When conflicts arise pretrial, judges are afforded broad discretion regarding the waiver of conflicted counsel.
For a waiver to be considered knowing and intelligent, the defendant must be informed of: (1) the existence of a conflict of interest, (2) the potential negative impact on their defense, and (3) their right to seek alternative counsel. In this case, the waiver was not valid as the trial court failed to ensure the defendant understood the implications of proceeding with conflicted counsel. Although the defendant was aware of a potential conflict, he was left uncertain about the actual conflict's existence due to conflicting statements from his attorney and the court. The attorney claimed no conflict existed, while the court acknowledged a potential conflict but did not investigate further.
The court discussed some consequences of maintaining the current counsel but did not clarify the nature of the attorney's conflicting representations regarding a witness. The district court did not adequately explore the specifics of the attorney's prior representations during the arraignment and failed to engage in necessary discussions with the defendant about the potential conflict, as suggested by Wheat.
DeLouche's significant involvement in the defendant's case raised concerns about potential conflicts of interest regarding counsel Oubre's dual representation. Judges Godwin and Minaldi failed to adequately inform the defendant about the nature of this conflict and its implications for his defense. Moreover, the record indicates that the defendant was not advised of his right to obtain separate counsel. Oubre's communication to the defendant only presented the option of continuing with her representation, omitting any mention of alternative counsel. During a September 1998 hearing, the trial court only highlighted the risks of proceeding with conflicted counsel without providing alternatives. Similar advisements were lacking during subsequent court dates, including at the October 1998 arraignment and in November 1999 when allegations of collusion arose. The trial judge could have appointed another attorney or ensured that cross-examination was conducted by a non-conflicted attorney to protect the defendant's Sixth Amendment rights. The absence of a clear, informed waiver of the right to conflict-free counsel led to the reversal of the defendant's convictions and sentence, with a remand for a new trial and appointment of defense counsel. Judge Victory dissented, arguing that the defendant had waived any potential conflict and suggested conditional affirmance of the convictions while further investigating the conflict waiver.
The court reversed the defendant's convictions and death sentence, foregoing examination of other alleged errors. Oubre had previously represented Deputy Vic Salvador, a member of the investigation team, who did not testify against the defendant. Ellis LeBouef, father of victim Marty LeBouef, had initiated a lawsuit against the Calcasieu Parish Sheriff's Office and the convenience store owner for inadequate response to an alarm notification. At a hearing on September 24, 1998, Judge Godwin addressed a potential conflict of interest regarding Oubre's representation of Deputy DeLouche, although no criminal charges were ever filed against DeLouche related to domestic issues. The record lacks details on Oubre's representation of DeLouche and whether he was under criminal investigation at the time, leaving both the defendant and the trial court uninformed about relevant circumstances. The summary of the defendant's interviews highlights inconsistencies, particularly concerning DeLouche's role in obtaining statements and the defendant's waivers of conflict-free counsel. Investigators learned of Virginia Johnson, who had seen two men entering KK's Corner shortly before the crime. Her initial descriptions led to the creation of a composite sketch, but details about the second man were vague. After a hypnosis session, she recalled a rabbit's head key chain associated with the second man. A segment on "America's Most Wanted" prompted Lonnie Kemp to provide a tip about a suspect known to wear a rabbit's foot key chain, leading FBI agents to interview the defendant in May 1998.
The defendant stated that he was a friend of Reeves and had not been in contact with her since moving from Lake Charles in 1989. He acknowledged being a heavy drug user around the time of the killings, which led to violent behavior, and suggested that he might have participated in the killings but had no recollection due to drug use. In a later interview, he claimed to have been in Metairie during the 4th of July weekend in 1997 and denied involvement in the murders. A neighbor testified that she had denied the defendant's request to accompany her and friends from a barbecue on July 4, 1997, and last saw him again the following Monday or Tuesday. The interviews with the defendant began around noon and included a written statement from 5:30 p.m. to 8:30 p.m. At trial, Sheila, Robert Thigpen's sister, confirmed seeing the defendant with Reeves at KK's Corner in September 1996. The defendant was isolated for much of 1998 and 1999, but in Spring 1999, he accessed a phone to make claims about the case and alleged involvement of the son of the then Calcasieu Parish Sheriff. A letter from the defendant’s attorney, Evelyn M. Oubre, outlined potential conflicts of interest due to her representation of a lead investigator in the case, Mr. Lucky DeLouche. The letter informed the defendant of his right to request her removal as counsel, but he chose to retain her. At a September 24, 1998 hearing, DeLouche testified as the director of the Violent Crimes Task Force, overseeing the investigation and evidence collection related to the killings at KK's Corner.
Deputy DeLouche obtained several incriminating statements from the defendant and decided when to formally arrest him, overseeing the investigation into co-perpetrators mentioned by the defendant. DeLouche served as a key witness in the State's case, with Judge Minaldi noting that LaVern was appointed as second chair due to a conflict of interest. LaVern's conflict stemmed from a representation issue involving another person associated with the Public Defender's Office, and a replacement for LaVern was not appointed until July 25, 1999, nearly a year and a half later. Robert J. Pastor managed the penalty phase of the trial while Oubre handled the guilt/innocence phase. The November 8, 1999 hearing centered on the defendant's motion to suppress the incriminating statements directed to DeLouche. If conflicts are raised post-trial, actual prejudice must be demonstrated by the defendant. The absence of evidence in the record indicates no hearing occurred regarding the claimed conflict. The excerpt references the Wheat case, where the defendant's request for representation by an attorney representing prosecution witnesses was denied. Other jurisdictions have established protocols for addressing potential conflicts, requiring the court to advise defendants of the risks and ensure they understand and waive any conflicts after consultation. The excerpt suggests that the defendant was not adequately informed about the conflict, especially since the issue arose shortly after Oubre first met him, and minimal communication continued until the arraignment.
