But according to an investigative report from ProPublica, judges on Louisiana’s Fifth Circuit Court of Appeal secretly decided not to review petitions that were not written by lawyers—and instead directed staff director Jerrold Peterson to send out cut-and-pasted denials to at least 5,000 petitions that no judge ever read.
It went on for more than a dozen years and generated at least $1.7 million in filing fees for petitions the court did not review, until Mr. Peterson exposed the scheme in a suicide note in 2007.
In the 16 years since Mr. Peterson revealed what the Fifth Circuit was doing, none of the all-white judges who colluded to ignore petitions filed by thousands of people in prison, most of them Black, has faced discipline, ProPublica reports.
ProPublica reviewed thousands of pages of documents, examined more than 450 cases, and interviewed dozens of people for its story about a scandal that has itself been ignored.
It was an open secret in the courthouse that, starting in 1994, all petitions filed by incarcerated people without lawyers were assigned to Judge Edward Dufresne Jr. He recruited three judges who agreed to put their names on rulings sent out by Mr. Peterson using one of the boilerplate denials he had drafted.
“I knew what they were doing, and I knew it was unconstitutional,” a former clerk told ProPublica. “Everyone knew about it.”
The scheme allowed Fifth Circuit judges—who already had the lowest caseloads in the state by far—to do even less work while raking in $300 in fees (paid by taxpayers in each parish) for each petition they did not read. Current and retired judges spent the money on office furniture, travel allowances, and other perks, ProPublica reports.
ProPublica found that the court’s own records showed at least 5,000 petitions were denied without review between 1994 and 2007, when Mr. Peterson died by suicide in his office in the courthouse.
While Edward Dufresne became Chief Judge and was honored with a life-size bronze statue, ProPublica reports that the scheme’s victims suffered grave consequences. Many people in prison who filed petitions themselves because they could not afford a lawyer had strong claims of innocence, official misconduct, and ineffective counsel that were nonetheless denied within days.
Indeed, at least five people whose claims were denied by the Fifth Circuit during this period were later exonerated, according to ProPublica.
Many of the petitions came from people who were sentenced to life without parole—a sentence more common in Louisiana than in Texas, Tennessee, Arkansas, Alabama, and Mississippi combined—for nonviolent offenses like drug possession under Louisiana’s habitual offender law.
The district attorney in Jefferson Parish, one of four parishes overseen by the Fifth Circuit, aggressively pursued life sentences under that law, and almost all of those cases involved Black defendants, ProPublica found.
More than 90% of the petitioners who later challenged the Fifth Circuit scheme came from Jefferson Parish, where prosecutors chose to strike Black people from juries at more than three times the rate of white people. As ProPublica observed, because until recently Louisiana permitted a defendant to be convicted on the votes of only 10 jurors, many of the Black petitioners had been convicted “by what amounted to an all-white jury.”
Louisiana’s so-called split-verdict rule—adopted in 1898 at a constitutional convention expressly intended to “establish the supremacy of the white race”—is just one of many factors (including Louisiana’s appallingly underfunded and deficient public defender system) that undermine the reliability of convictions.
The harm to incarcerated petitioners summarily denied in the Fifth Circuit was compounded by the Anti-Terrorism and Effective Death Penalty Act, which all but eliminated the federal courts’ authority to review state court rulings. Passed in 1996, the federal law meant that the Fifth Circuit’s cut-and-pasted denials foreclosed relief, even in the most compelling cases.
Mr. Peterson disclosed the scheme in a letter to the Fifth Circuit’s judges, which he also sent to the body responsible for judicial oversight and to the area’s major newspaper. Despite the serious consequences for thousands of petitioners, Mr. Peterson’s letter produced none for the Fifth Circuit judges. According to ProPublica, the Judiciary Commission started an investigation that went nowhere and never became public. The Times-Picayune did not report on it.
Several months after Mr. Peterson’s death, the Fifth Circuit quietly decided to change course and began assigning three-judge panels to review petitions filed by people in prison who could not afford a lawyer.
Nearly 300 people in prison whose petitions had been improperly rejected filed a joint petition to the Louisiana Supreme Court, demanding an investigation and new hearings. But in 2008, the state’s highest court followed the Fifth Circuit’s own recommendation and sent the petitions back to that court for it to reconsider itself.
Over the next three years, the Fifth Circuit reviewed the petitions of 454 incarcerated people. It upheld the cut-and-paste denials in every case.
The U.S. Supreme Court in 2019 unanimously refused to address the issue. “The re-review procedure adopted by the Louisiana courts, however, raises serious due process concerns,” Justice Sonia Sotomayor wrote in a short opinion faulting the petitioner, who could not afford a lawyer, for failing to “clearly set forth” his claim.
“I expect that lower federal courts will examine the issue of what deference is due to these decisions when it is properly raised,” she concluded. But as ProPublica points out, the petitioners are barred by the AEDPA from raising the issue in federal court.
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