IN THE SUPREME COURT OF LOUISIANA
NO. 11-KP-2799
STATE OF LOUISIANA,
RELATOR
VERSUS
MANUEL ORTIZ,
RESPONDENT
___________________________________________________________
RESPONDENT’S OPPOSITION TO
STATE’S APPLICATION FOR WRITS OF
PROHIBITION, MANDAMUS AND CERTIORARI
____________________________________________________________
NICHOLAS TRENTICOSTA/18475
Center for Equal Justice
7100 St. Charles Avenue
New Orleans, Louisiana 70118
(504)864-0700
Martin Regan
2125 St. Charles Ave.
New Orleans, Louisiana 70130
(504)522-7260
Counsel for Respondent Manuel Ortiz
MAY IT PLEASE THE COURT:
The State of Louisiana has requested that this Court grant writs of prohibition,
mandamus and certiorari to review the trial court’s ruling in post conviction proceedings
reversing the death sentence of Manuel Ortiz, Respondent. This Court requested
Respondent to file opposition; this pleading is filed timely.
I.
RULE X STATEMENT
The State asserts one ground for this Court’s consideration as to whether review
should be granted, i.e., Rule X, Section 1(a)(3). Respondent disputes this ground as a
reason for granting review because the district court found, as a matter of law, that the
death sentence in this case is unreliable. The district court did not erroneously interpret
or erroneously apply constitutional law, and therefore, the lower court’s decision will not
cause a material injustice, and it certainly will not significantly affect the public interest.
Indeed, the public interest in this case is to assure that capital trials are conducted in a fair
manner, and one that does not lead to unreliable sentences of death. Because the district
court’s decision is correct, Respondent demonstrates that the ruling is not worthy of
review by this Court. Should this court grant review, Respondent requests that the Court
allow for full briefing and argument on the issues.
II.
INTRODUCTION
The district court did not abuse its discretion by applying established
constitutional law requiring reversal of Respondent’s death sentence. The court correctly
found a due process violation created by Assistant District Attorney Ronald
Bodenheimer’s conflict of interest, applied the long-standing Eighth Amendment
reliability doctrine, and properly held that the because of Bodenheimer’s self-created
conflict, the death sentence is unreliable.
Assistant District Attorney Ronald Bodenheimer prosecuted Respondent for
capital murder. He was responsible for the “insurance part of the case.” R. 7674, and
signed a contract to represent the victims’ family on October 21, 1994. The trial was
conducted on September 14, 1994 through October 12, 1994. Following the trial, Mr.
Bodenheimer represented the state at the November 11, 1994 and January 19, 1994
proceedings. A motion for a new trial was conducted on January 26, 1995, wherein Mr.
1
Bodenheimer represented that state and testified. The motion was denied. Mr. Ortiz was
formally sentenced to death by the district court on January 31, 1995.
Post conviction proceedings were concluded on September 22, 2011 when the
district court issued its judgment following lengthy evidentiary hearings.
Prior to judgment and following argument on the merits of the post conviction
claims, the district court requested that the parties brief the issue of whether the court had
authority to reverse the sentence of death based upon the prosecutor’s conflict of interest
claim. The State filed a brief inviting the court to reverse the death sentence by arguing
the authorities allow that the “convictions (first degree murder as to Tracie Williams,
second degree murder as to Cheryl Mallory) can be maintained while the death penalty
only can be vacated.” State’s Brief at 1. The state first cited a string of cases “for the
proposition that, depending on the circumstances, a conviction may be affirmed while the
death sentence is vacated.” Id. Second, the State argued that under La.C.Cr. P. Art. 17,
and State v. Gutweiler 06-2596 (La. 4/8/08) 979 So.2d 469 and State v. Mims, 329 So.2d
686 (La. 1979), the court had the power to reverse the death sentence and that the
Louisiana Supreme Court had held that “it is within the inherent authority of courts to
fashion remedies that promote the orderly and expeditious administration of justice.” Id.
at 2. Third, the State argued in its brief that the district court had authority to reverse the
death sentence under Morgan v. Illinois, 112 S.Ct. 2222 (1992), Witherspoon v. Illinois,
88 S.Ct. 1771 (1968), Turner v. Murray, 106 S.Ct. 1683 (1986), Farina v. Florida, 680
So.2d 392 (Fla. 1996), Garcia v. Florida, 662 So.2d 1325 (Fla. 1996), United States v.
Johnson, No. 04-17, Federal District Court for the Eastern District of Louisiana. Fourth,
it argued the court could reverse the sentence of death because “death is different.” Id. at
2. The State concluded its brief by stating, “Thus, in some instances, matters ostensibly
affecting the entire proceeding do not warrant reversing the conviction but may warrant
vacating the death sentence.” Id. at 3.
In part, the state’s briefing post evidentiary hearing formed the basis of the district
court’s grant of relief. As shown above, the state urged the court to consider that because
“death is different,” the courts do in fact find issues that require reversal of death
sentences but not convictions. As noted by the district court in its ruling, the reversal is
based upon the Eighth Amendment’s doctrine requiring a “heightened need for
2
reliability” when a death sentence has been rendered. Judgment, at 10, citing, Caldwell v.
Mississippi, 472 U.S. 320 (1985); Eddings v. Oklahoma, 455 U.S. 104, (1982).
Even though the state argued to the district court that reversal of sentence may be
appropriate on the prosecutorial conflict of issue claim, based upon the authority as
outlined above, the state abandons those arguments in this Court. The state now criticizes
the district court for doing what the state argued could be done, and indeed invited the
court to do so.
III.
THE DISTRICT COURT RULING IS A CORRECT APPLICATION
OF CONSTITUTIONAL LAW
A.
The State Misunderstands and has Failed to Address the
District Court’s Basis for Reversal
Throughout its application the State asserts that the district court did not find that
Bodenheimer labored under a conflict of interest. See e.g., Application at p. 3 (“Thus the
court found, as detailed herein, that the trial was over at the time any conflict could have
existed. Thus, while the district court correctly found that no conflict of interest existed
at the time of trial and correctly denied relief as to the convictions, it erred in granting it
as to the death penalty.” Application at p. 7 (“Defendant’s (sic) claim that Bodenheimer
‘simultaneously’ had an interest in the civil litigation regarding the life insurance
proceeds at the same time he was prosecuting the defendant was correctly rejected by the
district court.”) Those representations are not correct as shown clearly by the district
court’s Judgment.
The district court did indeed recognize and find that Bodenheimer labored under
and “created a conflict of interest.” As it explained, “Despite Bodenheimer’s ongoing
obligations as a prosecutor, he undertook to represent the victims’ families on their civil
claims, and thereby created a conflict of interest. The conflict in the criminal case was
integrally related to the civil litigation because the civil action could succeed only if Mr.
Ortiz, who was listed as the primary beneficiary of the insurance policies, was convicted,
and remained so.” Judgment at 9. The clear and unambiguous finding made by the
district court is directly contrary to the State’s assertion that the district court “found that
no conflict of interest.”
Despite the fact that the district court found that Bodenheimer labored under his
created conflict, the court nonetheless denied reversal of the conviction. It did so because
3
the court did not believe the violation rose to the level of prejudice requiring reversal.
See Judgment at 9 (“a conflict of interest such as the present one would probably not
result in a reversal of conviction.”) However, the court then employed prevailing Eighth
Amendment law to determine whether the conflict affected the jury’s verdict of death.
The Eighth Amendment doctrine requiring a heightened level of reliability to death
sentences, that which was urged by the state below, compelled the district court to grant
relief. The district court’s judgment is a sound application of the law and supported by
the evidence.
The district court correctly identified the due process violation, joined that issue
with the prevailing Eighth Amendment law, applied the facts, and determined that the
violation warranted the reversal of the sentence of death. The court stated, “Taking into
consideration the heightened need for reliability, the Court cannot say with any degree of
certainty that the death sentence is appropriate in the present case.” Judgment at 10.
Of critical importance to the court is the fact that Bodenheimer was not seeking
the truth when he prosecuted Mr. Ortiz because he “argued throughout the prosecution
that Mr. Ortiz was responsible for increasing the insurance policies on his wife’s life.”
Judgment at 11. There is no dispute that this theory became the state’s central theme of
the case from the opening statement: “Manuel started buying insurance; life insurance on
Tracie. He bought a lot of life insurance on Tracie,” (R. at 5087), though the closing: “It
was always Manuel Ortiz who called [the insurance agent] and said I want to change or
increase the insurance. Ain’t no doubt about it … He’s the one that had the interest to
keep raising it and he’s the one that kept doing it…. In three months time he goes from
no insurance on her, on Tracie, to $900,000 if she dies the way she dies.” R. at 7390.
The theme continued in the penalty trial where Mr. Bodenheimer pleaded with the jury to
return a death sentence because, he argued, Mr. Ortiz bought the insurance policies. See,
e.g., “And the only way that you can only ever protect someone’s life is to send a
message to Manuel Ortiz and people like him, don’t come into our country, don’t scam
our insurance companies, don’t kill our women and try to leave again with your fortune.
R. 7526, and see, R. 7521, 7522, 7525.
Yet, “Mr. Bodenheimer made the opposite argument in the civil cases; he argued
that it was the victim, Tracie Williams, rather than Mr. Ortiz, who contracted with the
4
insurance company to increase the policies on her life…. It is repugnant that a prosecutor
would, in a death penalty case, urge the jury to make a particular fact finding, and then, in
a related civil case, argue the opposite conclusion, one which may have aided the defense
in the criminal case.” Judgment at 11. The court was referring to the civil case, wherein
Mr. Bodenheimer stated unequivocally that the victim insured herself. There, Mr.
Bodenheimer stated, “New York Life has contended that it is an issue in this case
whether the policies were procured by Ortiz with the intent to kill the insured, Tracie
Williams Ortiz. This contention is incorrectly based upon an assumption that the riders
under which the life of Tracie Williams Ortiz was insured were procured by Ortiz. They
were not. The policies involved in this case were not procured by Manuel Ortiz, to the
contrary, each policy was procured by the insured/deceased, Tracie Williams Ortiz.”
Petitioner’s Ex. 52, New York Life vs. Ortiz, No. 94-4003, Federal District Court for the
Eastern District of Louisiana, Reply Memorandum filed by Ronald Bodenheimer. For
his labor, Mr. Bodenheimer netted over $330,000.
The state spends little time discussing the district court’s actual reasons for
reversing the death sentence, and spends the bulk of its argument devoted to issues that
were not addressed. “While the state submits that the district court correctly denied relief
as to the conviction, application of the same law shows that the court erred in granting
relief as to the sentence.” App. at 3-4. The flaw in this statement is that the district court
properly did not apply the same law to the question as it relates to the sentence. The
district court relied upon decisions by this Court and the Supreme Court concerning the
Eighth Amendment.
Years ago, this Court explained why a death sentence requires a heightened level of
scrutiny:
Death as a punishment is in a class by itself. It is unique in its severity and
its irrevocability. Death remains the only punishment that may involve the
conscious infliction of physical pain. Hence, we fully subscribe to the
United States Supreme Court's observation that the qualitative difference of
death from all other punishments requires a correspondingly greater degree
of scrutiny of capital sentencing determinations (and procedures).
State v. Jones, 639 So.2d 1144, 1151-1152 (La. 1994) (emphasis supplied) (citations
omitted).
The importance of prosecutorial veracity, as a core value encompassed within due
process, is demonstrated in decisions by the Supreme Court. Without question, the Due
5
Process Clause applies with greater force in claims implicating the death penalty cases.
The reason is that the Eighth Amendment requires of heightened level of reliability. In
Woodson v. North Carolina, 428 U.S. 280 (1976), the Court explained why in capital
cases there is a greater need for reliability in the sentencing decision:
Death, in its finality, differs more from life imprisonment than a 100-year prison
term differs from one of only a year or two. Because of that qualitative difference,
there is a corresponding difference in the need for reliability in the determination
that death is the appropriate punishment in a specific case.
Id. at 305 (emphasis added).
Woodson underscores the precedential importance that the Constitution places on
maintaining procedural safeguards in capital cases. When a prosecutor is allowed to
present inconsistent and irreconcilable theories of culpability in successive proceedings,
there is a heightened risk that an arbitrary sentencing decision will be reached. “[D]ue
process requires fairness, integrity, and honor in the operation of the criminal justice
system, and in its treatment of the citizen's cardinal constitutional protections.” Morine v.
Burdine, 475 U.S. 412, 467 (1986) (Stevens, J., dissenting).
“[A]ccurate sentencing information is an indispensable prerequisite to a reasoned
determination of whether a defendant shall live or die.” Gregg v. Georgia, 428 U.S. 153,
190 (1976). “It is certainly not a novel proposition that discretion in the area of
sentencing be exercised in an informed manner.” Id. at 189. (emphasis added). The Court
has held that “where discretion is afforded a sentencing body on a matter so grave as the
determination of whether a human life should be taken or spared, that discretion must be
suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious
action.” Id. This principle of “guided discretion,” intended to produce accuracy in
sentencing, is thwarted when a prosecutor is allowed to present factually inconsistent
theories of a crime.
Because the Eighth Amendment requires a heightened level of reliability so as to
assure a sentence of death is not arbitrary but based upon truth, at times the constitutional
violation may not require reversal of conviction but of the death sentence. See, e.g.,
Brady v. Maryland, 373 U.S. 83 (1963); Banks v. Dretke, 540 S.Ct. 668 (2004).
A prosecutor who presents flip-flopping theories to advance his own interests
deprives an accused of “fundamental fairness,” an essential ingredient of the due process
clause of the Fourteenth Amendment. Due Process protects the accused from actions that
6
violate those “fundamental conceptions of justice which lie at the base of our civil and
political institutions and which define the community’s sense of fair play and decency.”
United States v. Lovasco, 431 U.S. 783, 790 (1977) (citations omitted). The requirement
of “fundamental fairness” is a core value “embodied in the Due Process Clause of the
Fourteenth Amendment.” In Re Winship, 397 U.S. 358, 369 (1970) (Harlan J.,
concurring).
Prosecutors serve a unique role in assuring that an accused receives “fair play and
decency” in the judicial process. As opposed to being “an ordinary party to a
controversy,” it is the prosecutor who serves as a critical “representative” of the
“sovereignty,” which has the “obligation to govern impartially.” Berger v. United States,
295 U.S. 78, 88 (1935). “In a criminal prosecution,” the prosecutor's role “is not that it
shall win a case, but that justice shall be done.” Id. “It is as much his [or her] duty to
refrain from improper methods calculated to produce a wrongful conviction as it is to use
every legitimate means to bring about a just one.” Id. (emphasis added). In this case, Mr.
Bodenheimer’s conduct “descend[ed] to a gladiatorial level unmitigated by any
prosecutorial obligation for the sake of truth.” Kyles v. Whitley, 155 S.Ct. 1555, 1563
(1995).
Prosecutors, as “ministers of justice,” have the obligation to seek truth. As stated
in Giles v. Maryland, 386 U.S. 66, 98 (1967) (Fortas, J. concurring), “[t]he State's
obligation is not to convict, but to see that, so far as possible, truth emerges. This is also
the ultimate statement of its responsibility to provide a fair trial under the Due Process
Clause of the Fourteenth Amendment.”
B.
Prosecutors Violate Due Process by Advancing Irreconcilable
and Inconsistent Theories
Several federal circuit courts have found, or implied, that the use of inconsistent
irreconcilable theories to secure convictions against more than one defendant in
prosecutions for the same crime violates the Due Process Clause. See, e.g., Smith v.
Groose, 205 F. 3d 1045 (8th Cir. 2000) (finding due process violation where state used
“inconsistent, irreconcilable” theories to secure convictions against two defendants in
different trials for the same offenses and stating, “[t]o violate due process, an
inconsistency must exist at the core of the prosecutor's cases against defendants for the
same crime”); Thompson v. Calderon, 120 F.3d 1045, 1058 (9th Cir. 1997) (en banc)
7
vacated on other grounds, 525 U.S. 538 (1998) (“it is well established that when no new
significant evidence comes to light a prosecutor cannot, in order to convict two
defendants at separate trials offer inconsistent theories and facts regarding the same
crime”); Drake v. Kemp, 762 F.2d 1449 (11th Cir. 1995) (en banc) (Clark, J. specially
concurring) (concluding that the prosecutor's use of totally inconsistent theories violated
the Fourteenth Amendment); In re Sakaris, 106 P.3d 931, 944 (Cal. 2005) (the “use of
irreconcilable theories of ... culpability, unjustified by a good faith justification for the
inconsistency, is fundamentally unfair, for it necessarily creates the potential for—and,
where prejudicial, actually achieves—... increased punishment on a false factual basis for
one of the accuseds.”)
In Bradshaw v. Stumpf, 545 U.S. 175 (2005), the question of whether due process
requires that a defendant’s guilty plea be reversed based upon a prosecutor’s inconsistent
theories was addressed and resolved in favor of the state because the Court determined
that the inconsistent theories did not relieve Mr. Stumpf of culpability nor did it cause an
invalid plea. Because the prosecutor’s inconsistent theories implicated the death sentence
in the case, the case was remanded to the circuit court for a determination as to whether
the death sentence should be reversed based upon its questionable reliability. The Court
stated, “the prosecutor’s use of the allegedly inconsistent theories may have a more direct
effect on Stumpf’s sentence, however, for it is at least arguable that the sentencing
panel’s conclusion about Stumpf’s principal role in the offense was material to it
sentencing determination.” Id. at 187.
On remand, the court determined, in light of Eighth Amendment jurisprudence,
that the death sentence was unreliable and it reversed the sentence. The Court held that
“it is much more than ‘arguable’ that Stumpf’s sentencers were swayed by the ultimatelyunreliable presentation by the representative of the State of Ohio.” Stumpf v. Houk, 653
F.3d 426 (6th Cir. 2011), rehearing en banc granted, opinion vacated on Oct 26, 2011.
The situation presented here did not involve two co-defendants but it did involve
two cases involving the same crime. When Mr. Bodenheimer advanced his central theory
that Mr. Ortiz secured his wife’s insurance policy without her knowledge, he was hardly
searching for the truth and was injecting arbitrary and unreliability into the sentencing
trial. Mr. Bodenheimer acknowledged, he was responsible for the “insurance part of the
8
case.” R. 7674. In the subsequent, related litigation, Mr. Bodenheimer finally presented
the truth: “The policies involved in this case were not procured by Manuel Ortiz, to the
contrary, each policy was procured by the insured/deceased, Tracie Williams Ortiz.”
Petitioner’s Ex. 52. This flip-flopping led the district court below to conclude, “The
conflict in the criminal case was integrally related to the civil litigation because the civil
action could succeed only if Mr. Ortiz, who was listed as the primary beneficiary of the
insurance policies, was convicted, and remained so.” Judgment at 9.
C.
The District Court Was Correct In Concluding That
Bodenheimer Created a Conflict of Interest and that Conflict
Violated Due Process
When then-Assistant District Attorney Ronald Bodenheimer agreed to undertake
the representation of the decedents’ families to acquire proceeds from insurance policies
on the lives of the victims while he simultaneously prosecuted Mr. Ortiz, Mr.
Bodenheimer transformed a capital prosecution into a personal crusade where Mr. Ortiz’s
very life was pitted against Mr. Bodenheimer’s ability to collect thousands of dollars in
fees.
Mr. Ortiz’s right to due process, specifically his right to a fair and impartial trial,
was violated due to Mr. Bodenheimer’s conflict of interest in that he concurrently
represented families of the victims in civil actions relative to the collection of the
proceeds of life insurance policies purchased through New York Life Insurance
Company. Such conflict of interest resulted in the deprivation of Mr. Ortiz’s rights under
the Fourteenth Amendment to the United States Constitution as well as attendant
provisions of the Louisiana Constitution, statutory provisions and the Rules of
Professional Conduct, and pertinent jurisprudence attendant to those state and federal
provisions.
The due process violation has two distinct, yet inter-related prongs. First, the
conflict of interest, in and of itself, provides the basis for the due process violation.
Second, the failure of the prosecutor to disclose the substance of the conflict of interest
violated La.C.Cr.Pro. art. 680 and that failure to disclose precluded Mr. Ortiz from
moving to recuse then-Assistant District Attorney Mr. Bodenheimer, thereby depriving
Mr. Ortiz of his right to due process. If Mr. Ortiz had been made aware of the conflict,
and been afforded the opportunity to bring a motion to recuse Mr. Bodenheimer, there
9
can be no doubt but that the court would have had to grant the motion. Mr. Bodenheimer
would have had to remove himself from Mr. Ortiz’s prosecution. Both prongs of this
violation merit independent discussion.
i.
The Prosecutor in Mr. Ortiz’s Capital Trial Labored
Under a Conflict of Interest by Simultaneously
Representing the Families of the Victims in Their
Insurance Claims While he Prosecuted Mr. Ortiz for
the Murder of the Insured Decedents.
The evidence presented by Mr. Ortiz in the post conviction hearing proves that
Mr. Bodenheimer labored under a conflict of interest when he simultaneously represented
the State of Louisiana and the families of the murder victims in civil actions in state and
federal courts. The conflict manifests because the subject matter of the civil litigation
arose out of the criminal litigation.
Mr. Bodenheimer, and his law partner, Assistant District Attorney George
Hesni, contracted to represent the Williams’ family on a contingency basis on October
21, 1994. P. Ex. 66. The first action, filed in December 1994, was brought by the New
York Life Insurance Company, sought a declaratory judgment relative to the status of all
individual beneficiaries on the policies. P. Ex. 52. The second action, filed in September
1995, by the families of the decedents, this time as plaintiffs, was against the New York
Life on a claim of wrongful death for negligently insuring the life of the Tracie and
Cheryl, and to fulfill its contractual obligations. P. Ex. 58.
The evidence demonstrates that this was not a situation of consecutive
representation; rather, then-Assistant District Attorney Bodenheimer simultaneously
represented both the State and the decedents’ families in an action arising from the
criminal prosecution. The civil court records demonstrate that on October 14, 1994,
which was two days after Mr. Ortiz was sentenced to death, the insurance company
received notice from Ms. Williams, the mother of one of the decedents, of her intent to
collect the insurance proceeds. In December of 1994, Mr. Bodenheimer appears as the
attorney of record for the decedents’ families in the civil cases and in January 1995, Mr.
Bodenheimer appears as a lawyer for the State of Louisiana and as a witness against Mr.
Ortiz. The conflict of interest continued until Mr. Ortiz’s direct appeal. There can be no
doubt but that the representations were simultaneous.
10
The dual representation from which the conflict of interest arises is particularly
egregious in the instant case for two distinct, yet again, inter-related reasons. First, it was
the State’s contention at trial that Mr. Ortiz paid for the murder of his wife in order to
collect on these very insurance proceeds so that the civil action is indisputably related to
the criminal action. Second, the family could only collect the proceeds of the insurance
policy if the State could convict Mr. Ortiz of murder.
The State’s theory at the criminal trial was that Mr. Ortiz paid another to kill his
wife, who was the subject of the insurance policies, in order to collect on the benefits.
Simultaneously, in his defense of the family on the action for declaratory judgment
brought by New York Life, wherein the insurance company claimed that the policies
were null and void ab initio since they were procured with criminal intent, Mr.
Bodenheimer, as private counsel, argued that the decedent, Tracie, was the contracting
party; and therefore the contracts were not void. See supra. These contradictory
statements, each self-serving in their respective contexts, provide the most cogent
evidence that it was impossible for Mr. Bodenheimer concomitantly to serve two
masters—his two clients—the State of Louisiana and the family of the decedent.
Mr. Bodenheimer knew there was a conflict, he just had no idea what it was
about. Mr. Bodenheimer testified that he knew there was a “problem” – “The fact that I
represented the State of Louisiana in the prosecution and I was going to represent a
family in a civil case. That was the problem.” HT 12/8/04 at 99. Mr. Bodenheimer
claimed that before he signed a contract to represent the Williams family, he decided to
seek an ethical opinion from the “State Bar Association.” “I called the State Bar
Association and told them what the problem was. They said that if there’s a conflict, the
conflict belongs to the district attorney himself.” HT 12/8/04 at 93. Mr. Bodenheimer
claims he then met with District Attorney John Mamoulides, who he said, “waived” the
conflict by stating, “Do it.” HT 12/8/04 at 99.
At the least, Mr. Bodenheimer’s professional involvement in the insurance cases
was violative of his ethical and professional responsibilities; and at the worst, his criminal
prosecution of Mr. Ortiz not only manifested an unequivocal denial of due process, but
also, it was a precursor for his own pecuniary gain on the civil cases. From any
perspective, the dual representation of the state in a criminal prosecution and persons who
11
may benefit from that prosecution presents a violation of due process, which would
require reversal of any resultant criminal conviction. As a result, Mr. Ortiz’s conviction
must be reversed.
The public prosecutors have an extraordinary duty:
Not only is a government lawyer’s neutrality essential to a fair
outcome for the litigants in the case in which he is involved, it is essential
to the proper function of the judicial process as a whole. Our system relies
for its validity on the confidence of society; without a belief by the people
that the system is just and impartial, the concept of the rule of law cannot
survive.
People ex rel. Clancy v. Superior Court, 39 Cal.3d 740, 218 Cal.Rptr. 24, 28, 705 P.2d
347 (1985); Berger v. United States, 295 U.S. 78, 88, 554 S.Ct. 629, 633 (1935).
As such, the prosecuting authority must be held to the highest ethical standards of
professional responsibility and even the appearance of impropriety must be denounced.
When a prosecutor’s interests are conflicted through dual representation that impacts
upon his official duties, that conflict of interest presents an actual impropriety, which
results in due process violations.
In Ganger v. Peyton, 379 F.2d 709 (4th Cir. 1967), the Fourth Circuit found that
the defendant’s due process rights under the Fourteenth Amendment were violated when
the prosecutor represented both the State of Virginia against the defendant for an alleged
assault against his wife and the defendant’s wife in the divorce proceedings, which were
based upon the alleged assault. The Fourth Circuit based its decision on the Supreme
Court’s denunciation of pecuniary gain by “judicial and quasi judicial” officers resulting
from their official duties.
That officers acting in a judicial or quasi judicial capacity are
disqualified by their interest in the controversy to be decided is of course
the general rule. . . . But it certainly violates the Fourteenth Amendment
and deprives a defendant in a criminal case due process of law to subject
his liberty or property to the judgment of a court, the judge of which has a
direct, personal, substantial pecuniary interest in reaching a conclusion
against him in his case.
Ganger, 379 F.2d at 714; Tumey v. Ohio, 273 U.S. 510, 522, 47 S.Ct. 437, 441 (1927)
Also, based upon the precepts of Tumey, the Ganger Court found that, due to the
extensive discretion attendant to their positions, prosecutors are “quasi judicial” officers
and that
. . . the conduct of this prosecuting attorney in attempting at once
to serve two masters, the people of the Commonwealth and the wife of
12
Ganger, violates the requirement of fundamental fairness assured by the
Due Process Clause of the Fourteenth Amendment.
Id. Prosecutorial abuse of office for pecuniary gain has not only been found to violate the
due process rights of affected criminal defendants, but it has also been found to impinge
upon the very integrity of the criminal justice system.
In State v. Eldridge, 951 S.W.2d 775 (Tenn. 1996), the Tennessee Court of
Criminal Appeals addressed a situation eerily similar to the instant case. While
representing the beneficiaries of an insurance policy, the same attorneys, acting as special
prosecutors hired by the family, but nonetheless representatives of the sovereign,
conducted the prosecution. That court found
. . . the prosecutorial participation of attorneys who also
represented the victim in a pending civil lawsuit arising from the same
incident violated defendant’s due process rights and was prejudicial to the
judicial process; therefore, we reverse and remand for a new trial.
951 F.2d at 776-77.
Relying upon Young v. United States, ex rel. Vuitton, 481 U.S. 787, 107 S.Ct.
2124 (1987), the Eldridge Court discussed the role of “special prosecutors.” In Young,
the Supreme Court addressed the issue of “special prosecutors” who were appointed to
prosecute contempt charges against persons with whom the attorneys had a business
relationship. The Supreme Court did not decide the constitutional questions, but instead
relied upon its supervisory powers to hold “that counsel for a party that is the beneficiary
of a court order may not be appointed as prosecutor in a contempt action alleging a
violation of that order.” 481 U.S. at 809, 107 S.Ct. at 2138.
The Eldridge Court recognized that the basis of the Supreme Court’s decision was
its supervisory powers, but it expressed the opinion that the Court’s rationale did not
preclude, and in fact foreshadowed, a finding of “due process violations where
enforcement decisions are motivated by personal interest, financial or otherwise.” 951
S.W.2d at 781. Therefore, the Eldridge Court held:
We have no hesitation in concluding that the participation by
special prosecutors who represent the victim in a civil matter arising from
the same incident giving rise to the criminal prosecution is a violation of
the defendant’s rights under the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.
13
Id. The court further found it significant that the special prosecutors in this case would
benefit financially from their representation in the civil case. 1
In Cantrell v. Commonwealth, 329 S.E.2d 22 (Va. 1985), the Supreme Court of
Virginia reversed the defendant’s conviction for the first degree murder of his wife where
private counsel, hired by the victim’s family to gain custody of the defendant’s child,
played a crucial role in his prosecution and ultimate conviction. In condemning the
conflict of interest, the Cantrell Court noted:
A lawyer who represents the victim of a crime, or the victim’s family, in a
civil case arising out of the occurrence which gives rise to a criminal
prosecution, for which he is hired as a special prosecutor, necessarily
incurs a conflict of interest. He cannot serve two masters. His duty to
administer the criminal law impartially, in the interest of justice, is
essentially a judicial one. Griffin v. U.S., 295 Fed. 437, 439-40 (3d. Cir.
1924). He also has undertaken a duty to represent the interests of his civil
client with undivided fidelity and zeal. The likelihood of conflict between
these two duties rises to the level of an overwhelming probability.
329 S.E.2d at 393 (emphasis added). See also Adkins v. Commonwealth, 492 S.E.2d 833
(Va. 1997) (private prosecutor unable to impartially perform duties due to conflict of
interest); State v. Ross, 829 S.W.2d 948 (Mo. 1992) (conduct of criminal prosecution
relative to conflicts of interest must be clear of suspicion); People ex rel. Clancy v.
Superior Court, 39 Cal.3d 740, 218 Cal.Rptr. 24, 705 P.2d 347 (1985) (California
Supreme Court struck down contingent fee arrangement with private attorney hired by
government to prosecute abatement action); Davenport v. State, 278 S.E.2d 440 (Ga.
1981) (ordering new trial since prosecutor’s former representation of the assault victim
injected appearance of impropriety); and People v. Zimmer, 51 N.Y.2d 390, 414 N.E.2d
705 (1980) (conflict of interest compromises expectation of impartiality). 2 Just as the
lawyer in Cantrell could not properly “serve two masters,” neither could Mr.
Bodenheimer. He properly served his private master and was well compensated for his
1
Indeed, the court noted that if, in fact, the special prosecutors had the civil case on a contingency fee
basis, then their “direct financial interest” would lead to a “direct irreconcilable conflict.” 951 S.W.2d at
782, n.3.
2
However, the controlling factor, which triggers the due process violation is not the actual
participation of a “special prosecutor,” but rather the level of control that such prosecuting authorities
have over the case. In East v. Scott, 55 F.3d 996 (5th Cir. 1995), the Fifth Circuit expressed its opinion on
the extent and role of a “special prosecutor” used by the State of Texas in a capital prosecution. Relying
upon the Fourth Circuit’s rationale in Person v. Miller, 854 F.2d 656 (4th Cir. 1988), the Fifth Circuit found
that for “purposes of due process, it is important to determine whether a private prosecutor controlled
crucial prosecutorial decisions.” 55 F.3d at 1001. Therefore, there can be no doubt but that when there is
only one prosecutor and he is acting as both a public (making all prosecutorial decisions) and a private
prosecutor (advocating for pecuniary gain), there is a violation of due process.
14
efforts; but he failed to serve his public master and the State of Louisiana, as well as Mr.
Ortiz. They were the victims of that failure.
Further, the timing of the dual representation does not control the issue. In
Hughes v. Bowers, 711 F.Supp. 1574 (N.D.Ga. 1989), the federal district court granted a
defendant’s petition for writ of habeas corpus based upon a Brady violation perpetrated
by a special prosecutor. It found that the prosecutor labored under a conflict of interest in
that he was substantially involved in the prosecution of the manslaughter charge against
the defendant and four months after the conviction the attorney informed the insurance
company that he was representing the decedent’s family; and even later, when the
insurance company denied benefits, the attorney filed suit for the families. The subject of
the Brady violation was the very life insurance policy at issue.
ii.
Mr. Bodenheimer Failed to Disclose the Existence and
Nature of His Conflict of Interest in Mr. Ortiz’s Capital
Case.
Louisiana Code of Criminal Procedure, Article 680, enunciates the grounds for
recusal of the district attorney. The article provides, in pertinent part, that “[a] district
attorney shall be recused when he . . . [h]as a personal interest in the cause or grand jury
proceeding which is in conflict with fair and impartial administration of justice.” In State
v. Tate, 171 So. 108 (La. 1936), the Louisiana Supreme Court addressed this provision,
formerly Article 310 of the Code. In Tate, the defendant was charged with blowing up
gin mills with explosives. He was tried twice. The first trial ended in a hung jury.
However, prior to the second trial, ending in a conviction, the district attorney took on the
representation, for a contingency fee, of the insurance companies that brought three civil
suits to recover damages relative to the explosions. The defendant moved to recuse the
district attorney on the basis that the district attorney had a “personal interest adverse to
that of the prosecution.”
In an attempt to defend his dual representation, the Tate district attorney argued
that his interest in the civil litigation was not adverse to the public interest; and that
despite the fact that that both wrongs suffered were “concurrent,” they were “wholly
distinct.” 171 So. at 111. The trial court issued an opinion stating that the interest of the
district attorney in the civil matters would, “if anything, make[] the district attorney all
15
the more zealous in the prosecution of this cause.” 171 So. at 112. Therefore, the trial
court denied the motion to recuse.
On Appeal, the Supreme Court recognized that “a district attorney must be
animated by his sense of public duty and not stimulated by his hope of private gain.” Id.
Further, the Court identified district attorneys as “quasi judicial” officers; and as such,
they must protect the rights of criminal defendants.
The district attorney is a quasi judicial officer. He represents the
State, and the State demands no victims. It seeks justice only equal and
impartial justice, and it is as much the duty of the district attorney to see
that no innocent man suffers as it is to see that no guilty man escapes. . . .
Therefore he should not be involved or interested in any extrinsic matters
which might, consciously or unconsciously, impair or destroy his power to
conduct the accused’s trial fairly and impartially.
171 So. at 112.
Finally, the Tate Court found that the dual representations of the district attorney
were sufficiently connected and that the statute was “broad enough to cover a case where
he is of counsel in a civil action against the accused, based substantially on the same or
on closely related facts.” Id. In this regard, the Court further noted more than a simple
closeness in the simultaneous litigations:
The subject matter of the litigation is so closely connected with the
subject matter of the criminal prosecution that its successful event is
dependent largely, if not entirely, upon defendant’s conviction.
Id. As a result, the Court held that the trial court should have granted the recusal and it
reversed the defendant’s conviction and sentence.
Nearly the same circumstances abide in the Mr. Ortiz’s case, but for one very
clear distinction -- Mr. Ortiz was never informed of Mr. Bodenheimer’s conflict of
interest and, therefore, he was never provided with an opportunity to move for recusal.
Despite the fact that the subject matters of the two litigations were inextricably woven—
to the extent that one could not be successful without the other, yet antithetically
disposed—Mr. Bodenheimer never disclosed that conflict to the defense.
This Court has subsequently found in State v. Valdes, 547 So.2d 9 (La. 1989), that
Article 680 provides the district attorney with an option to recuse himself voluntarily
when there are clear grounds, but that there is no requirement for him to avail himself of
the option. However, the Court did not believe that the language of Article 680 provides
the district attorney
16
. . . with a concomitant option of whether to inform the defendants
of the recusal grounds or not, as the onerous burden of having to ferret out
the personal or conflicting interests which a district attorney has with the
case should not be borne by the defendant. Instead, because he is an
officer of the court, the district attorney’s duty to perform his obligations
impartially require that he make a timely disclosure to defendants of his
conflicting interests or recusal grounds and that its discovery not be a
fortuitous event.
547 So.2d at 11. The Court offered a set of “precatory guidelines” for such disclosure:
1) A member of the district attorney’s office should fully disclose
to the court, on record, either orally or in writing, the nature of the
conflicting interest. 2) This disclosure should be made during the initial
stages of the proceedings against defendant, preferably at the arraignment
or a reasonable time thereafter. 3) Defense counsel of record should
receive timely written notice of both the substance and nature of the
disclosure(s) made to the court.
Id. Simply put, if a conflict exists, the district attorney must disclose it. If he had been
afforded the opportunity to move for recusal, Mr. Ortiz could have proved that Mr.
Bodenheimer’s conflict of interest was necessarily affecting his ability to impartially
prosecute him. Indeed, the “successful event” of the civil proceedings was “dependent
largely, if not entirely, upon defendant’s conviction.”
In addition, due to the inter-relationship between Article 680 and the selfregulating Rules of Professional Conduct, this Court cannot ignore the ethical violations
implicated by Mr. Bodenheimer’s conflict of interest and his failure to disclose that
conflict to the defense.
The ethical principle underlying Code of Criminal Procedure
article 680, as well as its language, encompass any instance of bias for
self, not just that arising from criminal conduct. The ethical principle is
that judicial power and prosecutorial power is a trust and must be
exercised fairly and impartially for the public interest, not for the selfinterest of the judicial officer. For this reason, Louisiana courts, under
both the 1921 and 1974 Constitutions, have applied to district attorneys as
quasi-judicial officers the ethical norms which constrain the choices and
actions of judges. . . . Louisiana Code of Criminal Procedure article 680 is
an ethics statute because it attempts to regulate the professional choice of
the prosecutor which is the predicate of the exercise of power. Article
680’s regulation of personal interest of the prosecutor seeks to exclude
extra-legal, subjective influence from the prosecutorial judgment, and
thereby from the resulting exercise or non-exercise of judicial power.
Yeager and Hargrave, The Power of the Attorney General to Supercede a District
Attorney: Substance, Procedure & Ethics, 51 La.L.Rev. 733, 745 (1991). See also La.
Const. Art. 1, Secs. 2, 22; art. 5, sec. 26.
The Supreme Court issued its opinion on conflicts of interest as they pertain to
district attorneys in In Re Toups, 2000-0634 (La. 11/28/00), 773 So.2d 709. In Toups,
17
formal charges were brought by the Office of Disciplinary Counsel against an assistant
district attorney from Lafourche Parish who simultaneously and privately represented a
party in a divorce action and, in his prosecutorial capacity, publicly intervened in related
criminal charges against the client’s spouse. The Supreme Court found various ethical
violations and gave no mitigating effect to the fact that there were no office directives on
civil representation. As if prescient of the instant case, a deeply disturbed Justice Victory
noted:
Dual representations by an attorney who is first and foremost a
district attorney present potential and actual conflicts of interest which
have troubled courts for many years. In our system of justice, we entrust
vast discretion to the prosecutor in deciding which cases to pursue, what
crimes to charge, and how to allocate limited resources. Because the
prosecutor is given such great power and discretion, he is also charged
with a high ethical standard.
773 So.2d at 715-16. As a result of the conflict of interest, the Supreme Court found a
myriad of ethical violations and issued a deferred six-month suspension, with two years
probation, and a public reprimand.
Here, Mr. Bodenheimer has violated at least four of the Rules of Professional
Responsibility. Rule 1.7, which controls a lawyer’s obligation of loyalty to the client and
prescribes against general conflicts of interest, dictates that “[a] lawyer shall not represent
a client if the representation of that client will be directly adverse to another client” and
“[a] lawyer shall not represent a client if the representation of that client may be
materially limited by the lawyer’s responsibilities to another client or to a third person, or
by the lawyer’s own interests.” The implications to the instant case are clear. As a
prosecutor, whose primary responsibility was to the people of the State of Louisiana to do
justice, his advocacy to that entity was irreconcilably compromised by his representation
of the decedents’ families in their contract actions. Further, the rules provide that the
timing of the representation does not eliminate the violation. Rule 1.9 mandates a
lawyer’s responsibility to a former client and prescribes against the subsequent
representation “in the same or a substantially related matter in which that person’s
interest are materially adverse to the interests of the former client” or when there is the
“use of information relating to the representation to the disadvantage of the former
client.” In the instant case, Mr. Bodenheimer used the information, and evidence, he
18
received with respect to the criminal prosecution of Mr. Ortiz to his own advantage.
There can be no more egregious violation of the public trust.
Rule 3.8 addresses the “special responsibilities of a prosecutor.” It admonishes
prosecutors, inter alia, to disclose all evidence that “tends to negate the guilt of the
accused.” In this case, it is clear that Mr. Bodenheimer proceeded at the criminal trial
under the proposition that Mr. Ortiz had contracted with the insurance company for
benefits in the event of his wife’s death, and that he then killed her to collect on those
proceeds. However, as shown above, in the civil actions, Mr. Bodenheimer clearly stated
that it was not Manuel Mr. Ortiz, but Tracie Williams, who had contracted with the
insurance company and caused her policy to be increased. Considering the theory of
prosecution, this cannot be considered an insignificant discrepancy. Rather, the first
statement was to ensure a conviction, which would enhance the families’ abilities to
collect on the insurance proceeds; and the subsequent statement to the insurance company
was directly related to his ability to prevail on the civil action and collect his contingency
fee. The subsequent position was not revealed to the defense during the capital trial and
was directly violative of Rule 3.8 of the Rules of Professional Conduct.
These violations far exceed the appearance of impropriety and are evidence of
actual impropriety. Mr. Bodenheimer cannot be couched as a mere advocate for the State
of Louisiana. Rather, he was, by all records, an extraordinary advocate for himself. By
convicting Mr. Ortiz of the murders, and gaining a death sentence, as lagniappe, Mr.
Bodenheimer created his own insurance that he would be handsomely paid through the
civil cases. All he had to do was ensure that the decedents’ families got paid and that
meant that he had to remove the named beneficiary. A conviction for first-degree murder
and a death sentence for Mr. Ortiz provided insurance for his fee. Even if these
violations gook place during a misdemeanor prosecution, there would be death penalty
violations. See also American Bar Association, Code of Professional Responsibility,
EC7-13 (1969) (prosecutor as representative of “the sovereign” must be “fair to all”);
American Bar Association Standards for Criminal Justice, The Prosecution Function,
Standard 3-1.1© (1980)(ethical obligation of the prosecutor “to seek justice, not merely
to convict”); ABA Committee on Prof. Ethics, op. No. 192 (1939)(“[A]n attorney holding
19
public office should avoid all conduct which might lead the layman to conclude that the
attorney is utilizing his public position to further his . . . personal interests”).
There can be no doubt that as a consequence of the above unethical and illegal
actions of then-Assistant District Attorney Ronald Bodenheimer, Mr. Ortiz was denied
his right to a fair and impartial trial in violation of his right to due process, as guaranteed
under the Fifth, Sixth, Eighth and Fourteenth Amendment to the United States
Constitution, as well as the attendant provisions of the Louisiana Constitution, and
interpretive jurisprudence. As a result, his conviction for first-degree murder must be
reversed and his resultant death sentence must be vacated.
iii.
The Authority Cited by The State Provides no Basis for
Finding the District Court’s Ruling was an Abuse of
Discretion
The state suggests that Andre v. Guste, 850 F.2d 259 (5th Cir. 1988), provides
support for its position. It does not. The state is disingenuous in using the following
quote -- “We further note that the claim raised by Andre, even if it were of constitutional
dimensions, ‘does not itself raise any questions as to his guilt or innocence’” App. at 4, -to support its argument without illuminating the cases directly following the observance.
The state rightfully should have explained to this Court the holdings of the cases
following the quoted passage, i.e., Kuhlmann v. Wilson, 477 U.S. 436 (1986) and
McDonald v. Blackburn, 806 F.2d 613 (5th Cir. 1986). Those cases hold that in order for
a federal habeas petitioner to have the merits of his claims heard in a successor habeas
corpus action, one must make a “colorable showing of factual innocence.” Kuhlmann, at
454. Andre was litigating a second or successive habeas petition; his only chance for
review was to make a colorable showing of factual innocence in order to overcome the
abuse of the writ doctrine. Nonetheless, the case is inapposite to the issues before the
district court and this court.
The state cites Maddox v. Lord, 818 F.2d 1058 (2d Cir. 1987). Again, the state
has failed to explain this case fully, most importantly that Maddox won relief, and seeks
to use dicta from the opinion in support of its argument. In Maddox, the circuit court
remanded the case for an evidentiary hearing because the petitioner had alleged facts
which, if proven, entitle her to relief. Maddox, at 1062, citing Townsend v. Sain, 372
U.S. 293, 312 (19963). What’s most important and glaringly absent from the state’s
20
recitation of the case, is that Maddox, the petitioner, won habeas relief on the remand.
See Maddox v. Lord, Doc. #71, No. 1-86-01693, Federal District Court for the Southern
District of New York.
The state cites Commonwealth v. Dunlap, 233 P.Super. 38, 335 A.2d 364 (1975),
in support of its argument. Again, the state is disingenuous in failing to explain that the
Dunlap court did indeed find constitutional implications in the prosecutorial conflict of
interest claim. See, supra at 41-42. While the state’s argument that “A similar claim was
made and rejected in Commonwealth v. Dunlap…” App. at 5, is correct, the state fails to
explain just why it was rejected. The court explained that 1) the appellant urged the court
to find reversible error, without a showing of harm, and 2) case law supports the reversal
if there is a showing of harm. Id. Thus, because the court “fail[ed] to find any specific
prejudice to the appellant to warrant the grant of a new trial,” the conviction stands. Id. at
42.
Dunlap provides additional support to Mr. Ortiz and is consistent with the district
court’s ruling. As shown above, the district court failed to find that Mr. Ortiz was
harmed by the conflict in the guilt or innocence phase of the trial, but did conclude that
Mr. Ortiz proved harm in the penalty phase. See supra.
FOR THE FOREGOING REASONS, Mr. Ortiz has demonstrated that the district
court was correct in finding that the sentence of death should be reversed and that ruling
was not an abuse of court’s discretion. Therefore, the issue does not warrant review by
this Court. Should the Court believe that review is necessary, Mr. Ortiz requests the
opportunity to fully brief and argue the case.
Respectfully submitted,
________________________________
NICHOLAS J. TRENTICOSTA/18475
Center for Equal Justice
7100 St. Charles Avenue
New Orleans, Louisiana 70118
(504)864-0700
Martin Regan
2125 St. Charles Ave.
New Orleans, Louisiana 70130
(504)522-7260
Counsel for Respondent Manuel Ortiz
21
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing motion has been served upon Terry
Boudreaux, Assistant District Attorney, counsel for Relator, by telecopier and U.S. mail
on this 16th day of February 2012.
_________________________________
Nicholas Trenticosta
22