The most basic distinction between a supervisory writ and an appeal is the appellate court’s discretion to grant or deny. La. C.C.P. art. 2201. See Livingston Downs Racing Ass’n, Inc. v. La. State Racing Com’n, 1996-1215, p. 3 (La. App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216 (The difference between supervisory jurisdiction and appellate jurisdiction…

Mark argued at the United States Supreme Court, a rarity for an attorney given that the court hears less than 70 cases a year of more than 10,000 filed. Mark argued on behalf of Henry Montgomery, asking the court to rule its decision in Miller v. Alabama retroactive. A retroactive decision would give Henry an…

The right to counsel at sentencing is violated when a defendant is represented only by “stand-in” counsel who is unfamiliar with the case, the Louisiana First Circuit held in State of Louisiana v. Eddie Powell, 2013 KA 1153, (La. App. 1 Cir. 2/18/2014). The facts demonstrate that because Powell’s attorney was out of town when…

Can perpetuating testimony be res judicata? Apparently so, according to a recent Louisiana First Circuit Court of Appeal decision. In In Re: William Henry Sanders Application for an Order to Perpetuate the Testimony of William Henry Sanders, 2013 CA 0329 (La. App. 1 Cir. 2/10/14), Sanders, 81, sought to perpetuate his testimony (the primary purpose…

The Louisiana First Circuit now provides a cheat sheet with e-mail notification of a lodged appeal. This “appellate brief structure” hints & tips sheet provides a list of what is now required in an appellant’s brief (the appellee’s brief does not need to contain each section unless there is a disagreement — check the rules)….

Does the Fourth Amendment require a police officer, who receives an anonymous tip about a drunken or reckless driver, to corroborate the dangerous driving before stopping a vehicle? In Louisiana, well yes in the 16-parish First Circuit jurisdiction. Undecided says the Louisiana Supreme Court. And maybe, maybe not in the about to decide United States…

Contrary to popular belief, particularly among the less-informed media, a writ denial by the Louisiana Supreme Court does not make law. Neither does the denial bless or adopt the court of appeal’s factual determinations or expressions of law. See McClendon v. State, Department of Transportation and Development, 1994-0111 (La. 9/6/04), 642 So.2d 157, 158, n….

Just a reminder of the rule changes for appellate court briefs. The First Circuit has done a nice outline of the changes and their effect on both appellant and appellee briefs. See http://www.la-fcca.org/index.php/component/content/article/41/83.