special to Drug War Chronicle by investigative journalist Clarence Walker, firstname.lastname@example.org
In 2010, Jody Butler -- Louisiana inmate# 152110 -- was sentenced to life without parole. New Orleans Judge Robin Pittman sentenced the skilled painter and father of an adoring daughter to spend the rest of his days in the infamous Angola state penitentiary, the nation's toughest and largest maximum security prison, located in the Louisiana swamps and surrounded by water.
Because he had more than two previous convictions for drugs, as well as one for robbery, Butler was prosecuted under the state's draconian habitual offender law, which mandates perpetual imprisonment for selected repeat offenders.
"I was serving life without parole for a nickel bag of marijuana and five rocks of cocaine," Butler lamented in a letter he wrote from prison.
In Louisiana, life means life. Butler would stay at Angola until the day he died unless a miracle happened. Last October 3, it appeared it had. On that date, the Louisiana 4th Circuit Court of Appeals overturned his conviction, ruling that New Orleans police officers "illegally searched Butler and seized his drugs without probable cause." Citing the New Orleans Police Department's (NOPD) notorious history of subjecting its citizens to illegal searches, as evidenced by a US Justice Department report, the appellate panel held that NOPD officers violated his constitutional right against unreasonable search and seizure under Fourth Amendment.
"There is no evidence the defendant was involved in any suspicious or illegal activity, prior to the pat-down," according to the judges. "In fact, the police officers specifically testified they had a clear view of the defendant from a short distance and saw no interchange between the defendant and the occupants of the vehicle."
"I was very pleased the 4th Circuit recognized the police violated Mr. Butler's rights and that he would be granted a second chance and not have to waste the rest of his life behind bars," said attorney Ariel Harman, who had represented Butler for the New Orleans Public Defenders Office during his 2011 trial.
But it wasn't to be. In May, responding to an appeal from the DA's office, the Louisiana Supreme Court effectively undid the 4th Circuit's decision. Splitting with the federal court, the state Supreme Court held that the NOPD did indeed have probable cause to stop and search him, upholding the original life-without-parole sentence -- because he had ridden his bicycle on a sidewalk as he rode away from police!
"While NOPD officers may have had no legal cause to frisk Jody Butler after seeing him leaning into an SUV at a drug hotspot on Danneel street, the fact he (Butler) pedaled away on his bicycle on the sidewalk -- a municipal violation -- was enough to pat him down," the court said.
The Supreme Court decision came just days after Butler's mother died while he sat in Angola. While Butler was shell-shocked, his attorney was appalled.
"I was bitterly disappointed when the state Supreme Court sanctioned the unconstitutional actions of the police in Mr. Butler's case," attorney Harman said. "And I am terribly sorry for him, who will likely have to spend the rest of his life behind bars because he possessed a very small amount of marijuana. Nobody should ever have to die in prison because they had some marijuana."
According to court records, it all began with NOPD officers seeing what they could spot as they patrolled a poor, inner city neighborhood. On June 27, 2010, NOPD Sixth District officers spotted Butler, age 40, leaning into an SUV on Daneel Street between Sixth and Seventh. Police said that when he saw them, he looked startled, and sped off on his bicycle onto the sidewalk.
Butler was charged with two counts of drug possession. Defense attorney Harman filed a motion to suppress the drug evidence as the fruit of an illegal search. Judge Robin Pittman denied the defense motion.
Particularly appalling to attorney Harman was the fact that prior to trial she agreed to a plea-bargain to have Butler sentenced without the habitual statute attached, which meant he could have received state jail time or a few years in the slammer. Harman appealed the suppression denial and was waiting to hear back from the appellate court on this matter when it became evident the DA was going to play hardball.
"They pulled their plea offer for Butler right before trial," Harman said. "I am confident we could have reached an agreement but the judge would not grant a continuance. "Since DA Leon Cannizarro took office in New Orleans, his policy has been to charge everybody under the habitual offender act. Despite the fact Cannizarro campaigned on the promise that he would focus on violent crimes and not tie up the courts and jails with drug offenses, he filed multiple bills in nearly every eligible habitual case. A plea bargain for Butler was in everybody's best interest. But the end result was injustice for everybody."
Instead, the case went to trial in January 2011. Based on the evidence derived from the officers' disputed search, he was convicted of drug possession and sentenced to life without parole. He appealed, and the 4th Circuit agreed.
"The best suspicion the officers gave was that Butler looked 'kinda startled' when he saw the officers and rode off," the appeals court noted. "The defendant was arrested without probable cause."
"We may assume the police had no actual subjective intent to arrest defendant for riding his bicycle on the sidewalk in violation of the city ordinance because actually they were looking for high-profile criminals," the court held. "We agree with the state that purely as an objective matter, the officers ultimately did nothing more than what the law entitled them to do by detaining the defendant after observing him commit a misdemeanor offense in their presence and searched him for weapons."
"The idea of a municipal violation -- riding a bicycle on the sidewalk -- as a pretext for the search was never raised until the 4th Circuit threw out the state's original grounds for the search," said Butler's appellate attorney, Chris Aberle. "The state only raised the argument on appeal. Under current law, police can arrest someone for a particular offense and then conduct a search incident to arrest, even if that offense was not what he police were interested in. But in the Butler case, the state Supreme Court expanded that doctrine so that police can conduct a search incident to arrest if the state after the fact decides that the person could have been arrested for that particular offense, even if police at the time were not aware the offense had been committed. With this ruling, the burden has shifted from the state to prove the stop was valid to the defense to prove it wasn't."
Aberle contends the DA's office erred in its appeal to the state Supreme panel by mentioning that Butler violated city ordinance by riding his bicycle on a sidewalk, a fact never mentioned in the original trial court's denial of the motion to suppress evidence nor included in the appeal to the 4th Circuit.
"The traffic stop had nothing to do with my case." Butler said.
"I think this is a big step backwards in terms of our rights to privacy," fumed Harman. "What's next? Is the court going to say it's okay for police to stop someone and strip-search them because they were littering?"
Butler's case is shocking, but not unusual in Louisiana. It is arguably the toughest state in the nation on punishing criminals, even harsher than Texas, California, New Jersey, and New York. The state has nearly 200 habitual offenders whose most recent crimes involved marijuana or crack possession serving life without parole. Of those 200, not one had previously been convicted of a violent crime.
Inmate Cornell Hood can attest to Louisiana's draconian stance toward drug convictions. In 2011, Hood, a resident of Slidell, Louisiana, was convicted of distributing marijuana. With three prior marijuana convictions, the priors triggered automatic life without parole in Angola. His attorney appealed, but before a decision was rendered, the DA offered a deal, agreeing to reduce Hood's sentence -- to 25 years.
The draconian sentencing has its costs. The Louisiana Department of Corrections spends more than $24 million a year just to care for more than 300 long-term inmates who are now too physically infirm to commit a crime.
The state Supreme Court is indifferent to such considerations and eager to uphold habitual offender life sentences. Butler's isn't the only case in which it has effectively overruled the 4th Circuit Court of Appeals.
Timothy Jackson was serving life without parole as a habitual offender in Angola prison when the 4th Circuit reduced his sentence, calling it "excessive and a prime example of an unjust result." But Jackson's joy at realizing he would be paroled turned to ashes when the state Supreme Court effectively overturned the 4th Circuit decision by ruling appellate judges cannot second-guess the habitual offender law except in rare cases.
With a reputation growing worldwide as a state that doles out sentences of perpetual imprisonment for nonviolent offenders, Louisiana elected officials have begun to act, even as the state's judiciary remains callous. Last year, the legislature passed and Gov. Bobby Jindal (R) signed into law House Bill 543, which allows nonviolent offenders serving life to seek parole -- after serving at least 25 years.
But the new law may not help Jody Butler. Whether to make the law retroactive, so it would actually provide some relief to currently imprisoned nonviolent lifers like Butler, is still being decided by the state parole board. If it does, he'll still be serving a 25 year sentence -- for slinging weed. Butler has appealed to the state Supreme Court to reconsider its initial decision in his case, but given that court's performance so far, he probably shouldn't be holding his breath. If that appeal is denied, the case could head for the US Supreme Court In the meantime, Jody Butler remains in Angola, hopeful that someday, freedom will ring, he will get out and get to get back to painting houses, and watch his daughter grow up.
"We have to really start taking a deep look at how we are treating human beings," lamented state Representative Terry Landry (D-New Iberia) told the New Orleans Times-Picayune in May. Referring to Holy Bible, Landry spoke solemnly. "Somewhere in a book it says, 'There but for the grace of God go I.'"