The Davenport Firm APLC

“Have the Courage to Be Disliked” — Bruce Lee

Wed, 04 Mar 2026 13:54:50 GMT

A lawyer’s role is not to avoid conflict at all costs, but to confront injustice when it arises.

Bruce Lee’s principle of having the “courage to be disliked” speaks to the importance of integrity, moral strength, and the willingness to stand against injustice rather than seeking approval. This concept is especially relevant in the practice of law, where the pursuit of acceptance or popularity can sometimes undermine the fundamental duty owed to clients.

Too often, some lawyers prioritize being liked by opposing counsel, judges, or members of the legal community over fulfilling their ethical and professional obligations. In an effort to remain part of the “courthouse club,” they may compromise their independence, dilute their advocacy, or place personal comfort ahead of their clients’ best interests. While professionalism and courtesy are essential, they become problematic when they replace principled advocacy or silence necessary opposition.

A lawyer’s role is not to avoid conflict at all costs, but to confront injustice when it arises. When fear of offending others prevents an attorney from speaking the truth, challenging misconduct, or zealously defending a client, the lawyer has placed personal agenda above professional responsibility. The justifications for such behavior may vary, but the underlying issue remains the same: a lack of courage to be disliked.

An honorable lawyer cannot simultaneously lack the courage to be honest, forthright, and resolute in defense of a client. Effective advocacy does not require universal approval. Rather, it demands independence, integrity, and the willingness to take unpopular positions when justice requires it.

We do not remain silent to preserve favor with those who act unjustly toward our clients. We do not compromise our honor or integrity for convenience or acceptance. While mutual respect and cooperation within the legal profession are important, they must never come at the expense of a client’s rights or interests.

We have the courage to be disliked when necessary. We stand firmly for what is right, even when doing so carries personal or professional cost. We stand with our clients, and we stand against those who seek to wrong them.

As your “No Fear” attorney, we practice with confidence, composure under pressure, and relentless advocacy—especially in high‑stakes matters. These qualities are grounded in thorough preparation, principled judgment, and an unwavering commitment to our clients’ needs.

Thomas “Tommy” Davenport, Jr. Celebrates 15th Anniversary as an AV® Rated Attorney

Fri, 20 Feb 2026 14:28:30 GMT

Martindale‑Hubbell® has awarded Thomas “Tommy” Davenport, Jr. the Martindale AV® 15th Anniversary Distinction , recognizing 15 consecutive years of maintaining its highest peer‑review rating.

An attorney must be admitted to the bar for a minimum of 10 years to qualify for an AV® rating. Mr. Davenport earned this prestigious distinction at the 10‑year mark of his legal career, and now celebrates 15 years of continued recognition. Among his many professional achievements, the AV® rating stands as one of the most respected honors in the legal profession.

The AV® Preeminent Rating from Martindale‑Hubbell® is the highest peer‑review rating an attorney or law firm can receive. It signifies preeminent legal ability, exceptional ethical standards, and professional excellence. Often regarded as the “gold standard” in attorney ratings, the AV® designation reflects superior knowledge, judgment, and communication skills. Fewer than five percent of attorneys nationwide hold this distinction.

In practical terms, an AV® rating indicates that fellow attorneys, judges, and legal professionals would confidently select the rated lawyer for representation if needed.

Martindale‑Hubbell® Peer Review Ratings are based on confidential evaluations from members of the Bar and Judiciary. The process includes personal interviews conducted by Martindale‑Hubbell® representatives, confidential questionnaires distributed to attorneys and judges within the same geographic area or practice field, and, in some cases, professional references supplied by the attorney under review. Reviewers assess both legal ability and adherence to ethical standards, forming a consensus based on extensive peer input.

Each Martindale‑Hubbell® Peer Review Rating consists of two components:

Legal Ability Rating
This rating evaluates professional competence within the attorney’s practice area, including experience, expertise, and qualifications. Ratings are assigned as follows:
• C – Good to High
• B – High to Very High
• A – Very High to Preeminent

General Ethical Standards Rating
This component measures adherence to professional ethics, reliability, diligence, and overall integrity. Attorneys must receive a “V” (Very High) ethical rating to qualify for a Legal Ability Rating.

When both components are confirmed, attorneys receive one of the following designations:
• CV® Rating – Demonstrates above‑average legal ability and very high ethical standards
• BV® Rating – Reflects exemplary reputation and a well‑established practice
• AV® Rating – Represents the highest level of professional excellence, skill, and integrity

Unlike directories that allow paid placements, Martindale‑Hubbell® Peer Review Ratings are fully impartial and compiled exclusively from evaluations by experienced legal professionals nationwide.

Maintaining an AV® rating for 15 consecutive years reflects Mr. Davenport’s sustained commitment to excellence. The AV® Preeminent Rating confirms that he is recognized by both peers and the judiciary as a lawyer of the highest professional caliber and integrity.

Privacy Is Essential in All Communications with an Attorney

Fri, 13 Feb 2026 20:15:11 GMT

We employ state‑of‑the‑art privacy and security protocols for all email communications.

When an individual consults an attorney, confidentiality must be absolute. Secure and private communication encourages full and honest disclosure, which is critical for effective legal advice and representation. The law protects these communications through the attorney–client privilege, ensuring that clients' personal information remains confidential. We take this obligation extremely seriously.

As email has become a primary method of communication, maintaining strict privacy standards is more important than ever. Today’s digital environment is marked by persistent attempts at data breaches, identity theft, and unauthorized access. Hackers seek personal information for resale on the dark web or for extortion. Additionally, major corporations—such as Google, Yahoo, AOL, and Microsoft Outlook—routinely scan and analyze email content for data‑mining, self-interests for development purposes, advertising, and other undisclosed purposes. Government surveillance is also widely suspected to include email monitoring. Once these entities obtain private communications, the information can be misused or exploited.

Because major providers such as Google, Yahoo, AOL, and Microsoft Outlook maintain access to all emails routed through their servers, any successful intrusion into these systems can potentially expose users’ communications. Google has openly acknowledged that its G Suite platform is administered by personnel who retain the ability to access user emails, meaning the confidentiality of those messages ultimately depends on the integrity of the company’s administrators.

Although the idea of corporations exploiting personal information from email communications may seem improbable, events such as the Cambridge Analytica and Facebook scandal have demonstrated how common such practices can be. As reported by Douglas MacMillan in The Wall Street Journal, in “Tech’s ‘Dirty Secret’: The App Developers Sifting Through Your Gmail,” software developers associated with third‑party email‑based services have been permitted to scan hundreds of millions of Gmail emails and messages. According to the report, “the internet giant continues to let hundreds of outside software developers scan the inboxes of millions of Gmail users.” This indicates that Google—and likely other providers—benefit financially by granting such developers access to private email content.

In an environment where identity thieves, corporate advertisers, and government agencies may compromise digital privacy, attorneys must remain vigilant and use secure, reliable systems. Many lawyers are not technology experts and may rely on convenient or low‑cost tools that fail to meet necessary standards. Such convenience often comes at the expense of client confidentiality. For this reason, we do not use platforms such as Facebook Messenger, standard text messaging, or similar services, as their privacy protections are insufficient.

Instead, we use leading‑edge technology to ensure that email communication is encrypted and secure. Our system incorporates (1) advanced authentication measures and (2) proxy protections that prevent tracking, device discovery, and location identification. All emails are encrypted in transit and upon receipt, and stored messages remain encrypted at all times. These measures safeguard against interception, tampering, or unauthorized access. We prioritize privacy above convenience or profit.

Before hiring an attorney, you should feel empowered to ask what steps the lawyer takes to protect the privacy of your communications. If an attorney cannot clearly explain their security protocols regarding email communications, this may signal a potential risk. It is entirely within your rights to ask how your email communications will be protected. Be cautious of attorneys who rely on common commercial email servers—such as Google, Yahoo, AOL, or Microsoft Outlook—as these providers are known to scan and access email content.

Understanding Article 893 and 894 Dismissals in Louisiana Criminal Cases

Fri, 06 Feb 2026 14:17:54 GMT

An 893 or 894 Does Not Automatically Expunge An Arrest Record

Overview

In Louisiana, individuals facing criminal prosecution may be offered a resolution under Article 893 (for certain felonies) or Article 894 (for misdemeanors) of the Louisiana Code of Criminal Procedure. These provisions are often presented as favorable alternatives to trial, allowing eligible defendants to avoid the uncertainty of harsher sentences by accepting probation and, upon successful completion, seeking to have their conviction set aside. However, there are important limitations and procedural requirements that must be understood.

Article 893 Dismissal (Felony Cases)

An Article 893 dismissal allows a court to suspend the imposition or execution of a sentence for certain noncapital felony offenses and place the defendant on probation. If the defendant successfully completes probation and fulfills all court-ordered conditions, the court may set aside the conviction and dismiss the prosecution. This dismissal is considered to have the "same effect as an acquittal" for expungement purposes, but it is not an actual acquittal.

Key considerations include:

The conviction may still be considered for certain legal purposes, such as determining habitual offender status or for use in subsequent prosecutions.
The opportunity for an Article 893 dismissal is limited and may only be granted once or twice, depending on the circumstances.
The dismissal does not erase the fact that there was an adjudication of guilt, and it may still have consequences in specific contexts (e.g., sex offender registration, professional disciplinary proceedings).

Article 894 Dismissal (Misdemeanor Cases)

Article 894 provides a similar mechanism for misdemeanor offenses. Upon successful completion of probation and all court-imposed conditions, the court may set aside the conviction and dismiss the prosecution. This process is intended as a rehabilitative tool, enabling eligible defendants to avoid the long-term consequences of a criminal conviction.

Important points to note:

The dismissal under Article 894 has the same effect as an acquittal, but the conviction may still be considered as a prior offense for purposes such as multiple offender status.
The dismissal does not automatically result in the destruction of arrest or prosecution records.
An Article 894 dismissal can serve as a basis for expungement, provided certain conditions are met (such as a specified period without further convictions). However, expungement is not automatic and requires a separate legal process.

Common Misconceptions and the Path to a Clean Record

A frequent misconception is that an Article 893 or 894 dismissal automatically removes an arrest or conviction from an individual’s record. In reality, to benefit from these provisions, the defendant must file a formal motion to set aside the conviction. Some courts or prosecutors may require additional documentation or a hearing to verify compliance with all conditions.

Even after a conviction is set aside, the record of arrest and prosecution remains unless an expungement is also obtained. Expungement is a distinct legal process that must be initiated separately. Without it, the arrest and conviction will continue to appear on the individual's criminal record.

Practical Considerations

The process for obtaining a dismissal and subsequent expungement can vary by jurisdiction and may require legal advocacy, especially if there is resistance from the court or prosecution.
While Louisiana law has evolved to make expungements more accessible, challenges remain, and it is important for individuals to understand their rights and the necessary steps to clear their record.

Conclusion

Article 893 and 894 dismissals offer significant opportunities for eligible defendants to mitigate the long-term impact of a criminal conviction. However, these benefits are not automatic. Individuals must proactively seek to have their conviction set aside and pursue expungement to fully clear their record. Legal guidance is often essential to navigate this process and ensure that the intended relief is achieved.

Understanding Home Title Theft and Wrongful Liens

Fri, 30 Jan 2026 15:14:12 GMT

Home Title Theft of a Growing Crime with Devastating Consequences

Overview

Home Title Theft, also known as Deed Fraud, is an increasingly prevalent crime with severe consequences for property owners. This offense occurs when a perpetrator forges the property owner's signature on legal documents—such as deeds, acts of sale, or transfer documents—to unlawfully transfer ownership of real estate. The fraudulent deed is then recorded, making the transfer appear legitimate. The criminal may subsequently sell the property or secure loans against it, absconding with the proceeds and often remaining beyond the reach of law enforcement due to the remote nature of these transactions.

Methods and Vulnerable Targets

Scammers frequently target properties that are fully paid off and have no outstanding mortgage, as these are easier to transfer without lender notification. Vulnerable individuals, such as the elderly, are at particular risk. In some cases, scammers may wait until the property owner passes away before taking possession, selling the property, or borrowing against it. This tactic exploits the inability of the deceased to contest the fraudulent transaction during probate or succession proceedings.

Preventive Measures

Property owners can take several steps to safeguard their homes:

Document Retention: Maintain copies of your deed, act of sale, and mortgage documents.
Tax Notice Review: Carefully examine annual property tax notices to ensure your name appears correctly and that no unauthorized transactions have occurred. If you do not receive these notices, promptly contact the relevant agencies, such as the local tax collector.
Mortgage Statement Monitoring: If your property is mortgaged, ensure you receive regular mortgage statements. Missing statements may indicate a problem.
Clerk of Court Inquiries: Periodically contact the Clerk of Court to verify that no unauthorized transfers, mortgages, or liens have been recorded against your property.
Credit Report Monitoring: Regularly review your credit reports for unfamiliar transactions. The website https://www.annualcreditreport.com offers free annual credit reports.

Responding to Home Title Theft

If you or a loved one becomes a victim of Home Title Theft or Deed Fraud, take the following actions:

Report the Crime: File a report with your local law enforcement agency.
Notify Financial Institutions: If you have a mortgage, inform your mortgage company immediately.
Alert the Clerk of Court: Request that the fraudulent transaction be flagged.
Credit Protection: Consider placing a credit freeze with major credit reporting agencies.
Seek Professional Assistance: Legal professionals can investigate and work to protect your rights and restore home ownership.

We will gladly investigate the fraudulent transaction and work to protect your rights and restore your home ownership. If you are an unfortunate victim of this terrible crime, we welcome to opportunity advocate for you and hold the wrongdoer(s) accountable.

Professional Guidance: Conduct During Law Enforcement Encounters

Fri, 23 Jan 2026 14:33:41 GMT

There Is No Court on the Side of the Road

Getting pulled over or stopped by law enforcement can be stressful for anyone. Remember, just as you don’t know the officer, the officer doesn’t know you either. Most officers are trained to treat every stop as potentially risky, so they’re on high alert from the start. That means sudden moves or arguing can make things tense really fast. Also, officers are trained to approach each encounter with caution, often perceiving every situation as potentially dangerous. As a result, any unexpected movements or confrontational behavior may be interpreted as a threat, escalating the situation unnecessarily.

It is important to remember that the roadside is not a courtroom. Attempting to argue your case or challenge the officer’s authority during the encounter is not only unproductive but may also be perceived as aggressive, potentially leading to more severe consequences, including death. Officers are not present to adjudicate disputes; their role is to enforce the law based on their training and experience. Like all individuals, officers can make mistakes, but the appropriate venue to contest their decisions is through the legal system, not during the encounter itself.

To ensure your safety and protect your rights:

Remain calm and courteous, regardless of the officer’s demeanor.
Avoid sudden movements and keep your hands visible at all times.
Do not attempt to resolve disputes or express frustration on the scene.
If you believe your rights have been violated, document the encounter and seek legal counsel to address the matter through the proper channels.

Maintaining composure and professionalism during law enforcement encounters minimizes risk and preserves your ability to seek justice through established legal processes.

So, what should you do? Stay calm, keep your hands where the officer can see them, and be polite—even if you feel frustrated or think the officer is being unfair. If you think the officer is in the wrong, don’t try to settle it there. Instead, make a note of what happened and, if needed, talk to a lawyer later. The legal system is where you can challenge a ticket or complaint, not on the roadside.

In short: keep your cool, don’t argue, and save your side of the story for court if it comes to that. It’s the safest way to handle things for everyone involved.

The Importance and Protection of the Identity of Sources and Informants to Independent News Organizations and Podcasters

Sat, 17 Jan 2026 22:35:34 GMT

The Identity of Sources of Information Are Protected Under Louisiana Law

Independent news organizations and podcasters play a vital role in modern society. Their work is essential for holding those in power accountable, exposing corruption, providing diverse perspectives, and fostering informed public debate. By delivering unbiased reporting free from corporate or governmental influence, these entities ensure that communities receive the information necessary for effective self-governance. Independent outlets also address gaps left by mainstream media, highlight local issues, and build trust through direct engagement with their audiences. In doing so, they serve as a crucial watchdog against abuses of power.

Organizations such as UrbanCast < https://involvedinitall.com > have demonstrated the value of independent reporting by covering stories and issues that mainstream media often overlooks. Without such coverage, important matters may remain hidden from public view, allowing influential individuals or groups to act without accountability. Given the limitations of mainstream media in covering all newsworthy events, independent organizations are indispensable in bridging informational gaps and keeping the public informed.

Podcasters, in particular, offer specialized and in-depth content that brings specific cases and information to public attention. Their contributions are significant in creating niche content, fostering community engagement, and providing accessible education and entertainment. Notably, podcasts such as Real Life Real Crime by Woody Overton < https://www.realliferealcrime.com >have played a direct role in solving cold cases, including the high-profile Courtney Coco case, which received national coverage with NBC and Dateline. These achievements underscore the unique value that podcasters bring to investigative journalism and storytelling.

Legal Protections for Informants and Sources

Despite their importance, independent news organizations and podcasters may encounter resistance from individuals hesitant to share information due to concerns about confidentiality and potential repercussions. Fortunately, Louisiana law provides robust protections for sources. Under La. R.S. 45:1452, reporters are not compelled to disclose the identity of informants or sources of information obtained in their professional capacity, whether in administrative, judicial, or legislative proceedings. This legal safeguard extends beyond the disclosure of names to include any identifying information, such as place of employment.

Louisiana case law has consistently upheld these protections. For example, in In re Grand Jury Proceedings, 520 So. 2d 372 (La. 1988), the Louisiana Supreme Court affirmed that a reporter could not be required to reveal sources used in articles on local corruption unless the party seeking disclosure could demonstrate that such information was essential to the public interest. This precedent ensures that independent news organizations, podcasters, and their sources are shielded from compelled disclosure, including to law enforcement authorities.

The protections of La. R.S. 45:1452 includes within its protective scope not only the actual name of a confidential source of information, but any disclosure of information, such as place of employment, that would tend to identify him. In re Burns, 484 So. 2d 658, (La. 1986).

So, based on this statute and the cases, independent news organizations, Podcasters, and their sources are protected from disclosure to anyone, including the police. This protection allows and protects news outlets and Podcasters from being compelled to disclose the identity of their sources. Likewise, people who wish to provide information to news-media outlets, or Podcasters should feel safe from reprisal or retribution because their identity and information are protected from disclosure. As a result of the law and cases, individuals who wish to provide information to journalists or podcasters can do so with confidence that their identity and contributions are protected by law.

Good Lawyers Are an Investment

Tue, 16 Dec 2025 01:25:03 GMT

The Impact of Legal Counsel on Your Future

Upon arrest in Louisiana, an arrest record is immediately established. Beyond the arrest, Louisiana facilitates the conviction of individuals. Louisiana was widely recognized as the “Prison Capital of the World.” Following a significant criminal justice reform, Louisiana now ranks second in line for this unfortunate title, trailing only Oklahoma. However, it is crucial to emphasize the ease with which an arrest can lead to a conviction in Louisiana. Once convicted of a crime, an individual’s life undergoes a profound transformation.

Criminal convictions entail both evident and concealed consequences. The evident consequences include imprisonment, probation, parole, and criminal fines. The concealed consequences encompass the impact on an individual’s ability to secure gainful employment, advance in their career, earn wages, develop earning potential, obtain housing, access credit, obtain licenses, professional licenses, public benefits, prevail in custody battles, secure loans, obtain insurance or fair prices for insurance, purchase and utilize firearms, obtain hunting licenses, exercise the right to vote, admission to college, travel, obtain security clearance, serve in the military, facilitate inmate visitation, and more.

Furthermore, in the future, if an individual convicted of a crime encounters a police officer, there is a substantial likelihood that the officer will presume the individual is engaged in criminal activity and does not deserve leniency. Similarly, prosecutors and judges will utilize these convictions to enhance the penalties for any subsequent or additional crimes.

Regrettably, a criminal conviction not only adversely affects the individuals convicted but also has a detrimental impact on their family. While this may be unfair, it is not remains true.

Given the numerous consequences associated with a criminal conviction, it is imperative that legal counsel possess the requisite experience and effectiveness to prevent a conviction. In the most dire circumstances, a competent attorney can even position certain cases in such a manner that the conviction can be expunged from an individual’s record. Developing such an ability requires extensive years of dedication and expertise.

The process of assembling a case and presenting it to a judge or jury is significantly more intricate than depicted in television shows or movies. Highly skilled and dedicated lawyers typically invest 20-25 hours of preparation for each hour spent in court. This preparation encompasses comprehensive interviews and analyses of clients, witnesses, crime scenes, police reports, and case investigations. Prior to trial, numerous legal issues necessitate extensive research and writing. When addressing these legal challenges, trial judges may not always make the most accurate decisions, necessitating lawyers to seek relief in appellate courts.

In court, meticulous attention must be paid to the presentation of the case to a jury. Lawyers must diligently ensure that every aspect of the case is thoroughly proven and comprehended, enabling the jury to arrive at the most favorable conclusion. Effective lawyers are continually learning and refining their presentation techniques to persuade jurors and judges in the best interests of their clients.

Given the substantial stakes involved for our clients, the vast knowledge base, and decades of experience, effective lawyers represent a valuable investment. Many clients make the erroneous decision of “price shopping” lawyers without fully comprehending the true value and quality of the services they are acquiring. To avoid this consequence, it is suggested that prospective clients consider the lawyer’s experience, client testimonials, record of success, publications, and specialized education experiences.

WHEN AN ATTORNEY PUTS HIMSELF AHEAD OF HIS CLIENTS, THE CLIENTS SUFFER

Sat, 06 Dec 2025 21:47:34 GMT

A Lawyer Without Fear

Many lawyers face significant personal sacrifices when representing clients who are unpopular or accused of heinous crimes. The pursuit of justice for these clients often entails substantial personal expense. The dilemma faced by many lawyers lies in the recognition that the more vigorously they defend their clients’ rights, the more unpopular they become within their communities. This often results in their exclusion from exclusive social circles such as the “courthouse club” or upscale golf clubs. While this may be an unfortunate consequence of an effective lawyer who prioritizes their client’s interests over their own reputation, it is a trade-off that must be made.

Although it is desirable for lawyers to handle cases without being subjected to unfair judgment, this is not the reality of our society. Judgment and opinion wield considerable influence over individuals, often more than they should. However, Thomas “Tommy” Davenport, Jr., takes immense pride in dedicating his efforts to protecting individuals, regardless of the judgmental opinions held by some. Tommy acknowledges that good people can be unjustly accused or that individuals possess qualities beyond their most negative actions. The justice system does not grant additional rights to “well-liked” individuals compared to those who are not well-received. Judging someone’s character is not within our purview.

If you or a loved one is facing a serious charge or involved in a significant claim, and you require a lawyer who prioritizes their clients’ interests over their own reputation, contact Thomas “Tommy” Davenport, Jr.

WHERE TO TURN WHEN AN INVESTIGATION IS NEEDED, AND LAW ENFORCEMENT CANNOT HELP

Sat, 06 Dec 2025 21:11:46 GMT

By Thomas Davenport, Jr.

Occasionally, individuals or corporations necessitate thorough investigations into various matters. While law enforcement exclusively investigates criminal cases, individuals and corporations seeking non-criminal investigations may find themselves at a loss. In response to this need, we offer comprehensive investigation services conducted with utmost discretion. Our extensive experience in investigating cases, coupled with the expertise of renowned investigator, Woody Overton, enables us to provide comprehensive, accurate, and straightforward investigative results. We adhere to the highest ethical standards and work impartially to ensure the integrity of our investigations.

Thomas “Tommy” Davenport, Jr. Is, Again, Published in a National Journal

Fri, 13 Oct 2023 23:40:00 GMT

Thomas “Tommy” Davenport, Jr., of Alexandria, Louisiana is, again, published in a National publication, The Warrior, Journal of the Trial Lawyers College. Tommy’s most recent publication is Thomas D. Davenport, Jr., A Lawyer’s Guide to Discovering the Story of a Martial Artist in a Self-Defense Case THE Warrior, Journal of the Trial Lawyers College, Summer 2023 at 66-71.

This Article follows a number of others found in various National and State publication, which include:

Gail Dalton Schlosser, Louisiana Criminal Trial Practice Formulary , (2 ed. 2006 – 2007) § 26.12.1, § 26-14, § 26.15, § 26.16

Gail Dalton Schlosser, Louisiana Criminal Trial Practice Formulary , (2 ed. 2007 – 2008) § 26.12.1, § 26-14, § 26.15, § 26.16

Gail Dalton Schlosser, Louisiana Criminal Trial Practice Formulary , (2 ed. 2008) § 26.12.1, § 26-14, § 26.15, § 26.16

Thomas D. Davenport, Jr., Review and Application of the Louisiana Expungement Statute , The Advocate, Louisiana Association of Criminal Defense Lawyers, Spring 2008, at 14 -15

Gail Dalton Schlosser, Louisiana Criminal Trial Practice Formulary , (2 ed. 2010-2011 ed) § 26.12.1; Review and Application of the Louisiana Expungement Statute

Thomas D. Davenport, Jr. and Michael Traynor, Uncaging The Story: Discovering the Story of an Incarcerated Client , The Warrior, Journal of the Trial Lawyers College, Fall 2014, at 19-21

Thomas D. Davenport, Jr., Do You Feel My Pain? Strategies for Proving Pain , The Warrior, Journal of the Trial Lawyers College, Winter 2015, at 37-41

Thomas D. Davenport, Jr., The Magic at the TLC Local Working Groups , The Warrior, Journal of the Trial Lawyers College, Summer 2015, at 11-14

Thomas D. Davenport, Jr., TLC At Your Fingertips , The Warrior, Journal of the Trial Lawyers College, Summer 2015, at 23-24

Thomas D. Davenport, Jr., The Best Apps for a Warrior , The Warrior, Journal of the Trial Lawyers College, Summer 2015, at 45-49

Thomas D. Davenport, Jr., All Votes Should Count: Tom Dickson Fights for Native American Voters , The Warrior, Journal of the Trial Lawyers College, Winter 2016, at 57-59

Thomas D. Davenport, Jr., All Votes Should Count: Tom Dickson Fights for Native American Voters-Part II , The Warrior, Journal of the Trial Lawyers College, Spring 2016 at 7-9

Thomas D. Davenport, Jr., All Votes Should Count: TLC Alum Tom Dickson Successfully Fights for Native American Voting Rights (The Conclusion) , The Warrior, Journal of the Trial Lawyers College, Fall 2016 at 20-21

Thomas D. Davenport, Jr., Insurance Industry Practices Fuel Need for Rate Increases , Louisiana Advocates, Vol. XXXIV, No. 5 May 2019 at 20-23

Thomas D. Davenport, Jr., The “Bad Guy Necessity” The Warrior, Journal of the Trial Lawyers College, Summer 2019 at 53-54

Thomas D. Davenport, Jr., The Long, Hard Road to Changing Louisiana’s Expungement Law The Warrior, Journal of the Trial Lawyers College, Winter 2020 at 28-32

Thomas D. Davenport, Jr., Lies of Damnation in Exchange for Freedom: Jailhouse Snitches and Incentivized Witnesses THE Warrior, Journal of the Trial Lawyers College, Fall 2020 at 16-22

Tommy’s passion for the law extends to bringing aware of numerous topics to everyone from practicing lawyers to members of the public. He firmly believes knowledge is necessary so that people will not be oppressed by the government or corporate America.

A Martial Artists’ Guide to Self-Defense and Defense of Others in Louisiana

Tue, 01 Mar 2022 15:33:00 GMT

I believe it is highly beneficial to study and practice martial arts. It is good for the mind, spirit and body. It requires discipline, dedication and hard work. My journey in martial arts began with learning Taekwondo, earning a blackbelt in 1989. Decades later, I began learning Seven Star Praying Mantis Kung Fu under Sifu James Mclin of Legendary Kung Fu and Tai Chi. The style of Seven Star Praying Mantis is an extremely effective and destructive form of Kung Fu. While learning a martial art is intended as a positive benefit, that knowledge could be negatively construed when it comes to self-defense or the defense of others.

Anyone with working knowledge of any martial art (e.g., kung fu, karate, jiu-jitsu, boxing etc.) is subject to a negative perception in a situation of self-defense or defense of others. The negative perception is caused by the manner which the police, judges, or prosecutors will measure your response to a potentially life-threatening encounter. When you are a would-be victim of an attack, the authorities may be of the opinion you should have applied “just enough” skill to fend off the assailant. Should your actions in the context of self-defense exceed this notion of “just enough” to repel the aggression, the authorities might suggest you took matters too far. Some may even suggest you were showing off or “hot dogging” your skills.

The first hurdle in a self-defense case is colorable proof you were not the initial aggressor and were put in the position of having to defend yourself or a loved one (called defense of others). Keep in mind, the aggressor usually plays the “victim card” after someone successfully overcomes his aggression. When this happens, the case turns on your word against the aggressor’s word.
When there is a police investigation into a fight, the police investigation will focus on you and your actions. When this happens, the concept of self-defense is rarely (if ever) the issue. Rather, the facts, evidence and opinions of the police that will drive the case and establish whether there was an initial aggressor and someone simply defending himself. Keep in mind, defending yourself is a defense under the law (not to an arrest). The police determine the facts and will only excuse your actions if they are clearly convinced of a showing of self-defense or defense of others. Keep in mind, some police do not get bogged down with legal issues like self-defense. These types of police officers arrest everyone involved and expect the courts to sort out the legal defenses. When this occurs, the police are simply avoiding the hard work of an actual investigation and passing the buck to the courts. To err on the side of caution, the martial artist should expect to independently prove up a self-defense or defense of others situation and not presume the police will do it for him or her. This guide is intended to assist you with learning your legal rights and responsivities when facing a self-defense or defense of others encounter.

Many martial artists and schools offering instruction in martial arts speak of self-defense, and do not know the legal definitions of it. What is self-defense under Louisiana law? Louisiana law defines “self-defense” in La. R.S. 14:19 (use of force or violence in defense) as:
A.
(1) The use of force or violence upon the person of another is justifiable under either of the following circumstances:
(a) When committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense.
(b)
(i) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1 (40) when the conflict began, against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person using the force or violence reasonably believes that the use of force or violence is necessary to prevent the entry or to compel the intruder to leave the dwelling, place of business, or motor vehicle.
(ii) The provisions of this Paragraph shall not apply when the person using the force or violence is engaged, at the time of the use of force or violence in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law.
(2) The provisions of Paragraph (1) of this Section shall not apply where the force or violence results in a homicide.
B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:
(1) The person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
(2) The person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred.
C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force.
D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.

What is defense of others under Louisiana law? Louisiana defines “defense of others” in La. R.S. 14:22 as:
It is justifiable to use force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person.

Notice that neither self-defense nor defense of others law requires you to retreat. However, while standing your ground may be legally permissible in Louisiana, discretion is the better part of valor. This means it is better to avoid a dangerous situation than to confront it. Why? Because it will take an incredible number of resources (financially and personally) to legally justify your actions in a court of law (criminal court and civil court). It costs next to nothing to avoid an unnecessary confrontation. This assumes the option of having a choice and that is not always possible in a self-defense situation.

Having read the blackletter law on self-defense and defense of others, you should be aware of another legal concept in Louisiana law, which is found in La. R.S. 14: 21 (Aggressor cannot claim self-defense). It provides:

A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.

What is important about this particular law is it allows the aggressor to “withdraw” from the conflict. The act of withdrawal does not need to be verbal. The act of withdrawing will vary from person to person and situation to situation. It gives the aggressor an out or, at least, a justification to pursue criminal charges and/or a civil lawsuit against you. It also makes it tricky for those put in the situation of having to defend himself or others to know when to pull the punches. Let’s face it-none of us have been in a fight where the other says, “I give up.”

In light of the foregoing, what should you keep in mind before you have to defend yourself or others? Be certain the threat is an actual one of bodily harm and not some minimal or non-existent threat. To be sure, ask yourself, “how could I have misinterpreted this as a threat?” and “is any aspect of this threat subjective?” If there is a reasonable basis to conclude there is an actual threat, try to avoid the confrontation. If that is not an option, try using your words to deescalate the encounter. If talking fails or there is not sufficient time to deescalate and you are compelled to employ your martial arts skills, then use the force needed to repel the aggression. Please note this is not the same as entirely neutralizing the aggressor or threat. For example, if an attacker is repelled by anything less than broken bones, dismemberment or death, then there is no need to do so. However, in the throes of an attack, it is understandable the precise line of force is blurred. Along these lines, you can rest assure the original aggressor will almost always claim you crossed the line no matter how merciful your self-imposed limitations. (Bullies are usually the first to cry about an effective response).
If you are being pursued by an assailant, who is advancing in an aggressive way, scream or yell that you wish to be left alone and for someone to call the police because you are in fear for your life. Hopefully this will get the attention of any bystanders/witnesses, who will call the police and see you are the victim of aggression. Ask onlookers to record a video of the aggressor or record him/her on your smartphone. If there are no others around, you can direct your smartphone to call the police or 911. Tell the authorities you are in fear for your life and identify or describe the aggressor. Consider yelling “fire” to get attention from people who may not be present. Hopefully this will cause the aggressor to come to his senses. If he does not stop his aggression, you have created the conditions where the aggressor’s actions will shore up your self-defense claim.

Your response with force must be reasonable. It must be an amount of force reasonably necessary to defend yourself or others. Should you cross the line of what is reasonable, the assailant and the police may claim your actions were excessive. This will be a way for an assailant to become a “victim.” Keep in mind, the police and courts will examine every aspect of your actions in self-defense with an eye looking for anything that may be deemed excessive.

If during your defense, the aggressor is knocked unconscious or otherwise disabled, if you leave him unattended and his condition takes a turn for the worse, such as death, the issue moves from self-defense to something much worse, like murder or attempted murder. If you are in this impossible situation, consider calling 911 from the aggressor’s cellphone to report his condition and location. Leave the cellphone near or on the person because many 911 centers can locate a cellphone. You are not required to disclose your name or leave any identifying features (i.e., fingerprints, phone number etc.) with the 911 operator or at the scene. Perhaps you could remain in the distant vicinity to make sure emergency services arrives to tend to this person. Next, thing you should do is contact an experienced criminal defense attorney and do not discuss those events with anyone else.
Even if you are successful in defending yourself, this endeavor is not likely over. Should the police become involved, and you cannot avoid that interaction, you will continue to defend yourself, but not with anything you learned in martial arts. This defense is one that requires the exclusive use of your mind, which is your greatest weapon. If you become part of a police encounter after a fight, employ breathing exercises and calm down. You may still experience the effects of adrenaline and the “fight or flight” response, and this will not be helpful during the police encounter. Despite the surge of these involuntary physiological responses, the police will interpret those responses as suspicious or nervousness. So, try to calm down. No one can fault you for needing to “take a few minutes” to calm down.

At this point, almost all criminal defense attorneys will advise you not to speak to the police or answer any of their questions. This is certainly my recommendation. However, if you do not explain how you were attacked, the police have very few options on how to proceed and it will be highly likely that you will be arrested (keep in mind the police do not have the final decision regarding a criminal conviction). In that moment, hopefully there will be witnesses who can explain what happed and how you were attacked. The police can gather information from the witnesses without having your statement. If not, while an arrest is almost certain to follow, it is advisable that you request to speak to an attorney, which is your constitutional right. After you consult an attorney, the two of you can decide if a statement is necessary.

I suspect some of you may feel you can explain your way out of this situation, but it almost never works. If you try to explain your actions to the police (something I do not recommend), do not say anything about martial arts training or refer to any of the techniques (by name or description) used during the attack as doing so will reveal your martial arts training and knowledge. Limit the discussion to what the aggressor did and how you felt you and/or your loved one was/were in fear of loss of life. Your reaction to this perceived threat is not important as the threat itself. Keep in mind, anything you tell the police will limit your options at any subsequent proceedings. Also, it is not what you say, but what the police report what you said. These are often two different concepts.

Of course, life would be better if there were not any bullies in the world. But, as we know, bullies are not only found on the schoolyard. They are everywhere. When these bullies try to pick a fight, it is best to avoid the confrontation. If you do not have that option, call attention to the bully so you can have the evidence needed to defend yourself in court. Keep in mind, a bully is usually motivated by a fragile ego. When you best a bully, he will be the first to run to the police in an effort to get the last lick in. Martial arts training will not be of any use with the police investigation. If you are in the situation, obtain help from a criminal defense attorney to fight for you.

How to Find the Best Immigration Attorney for You by Chris Kinnison

Mon, 30 Mar 2020 20:35:00 GMT

In my practice, there have been times where people need an immigration lawyer. While I do not practice immigration law, Chris Kinnison does. I invited Chris to write an article for the blog to give advice on how to find a skilled and experienced immigration lawyer. I called on Chris because I have known him for some time and am familiar with and respectful of his work ethic and integrity. I know he will give solid and honest advice.

How to Find the Best Immigration Attorney for You

By: Christopher Kinnison

With so many attorneys out there, trying to find the right immigration attorney can certainly be a challenge. There are lots of things you should considered before making your decision.

First, is the attorney you are considering even licensed to practice law in the United States? Sadly, many immigrants are taken advantage of by “notarios” or people who charge large sums of money for immigration assistance yet are not licensed to practice law in any state. This is a frequent occurrence. First, inquire as to which state that attorney is licensed in. This information can usually be gleaned by looking at the lawyer’s website. Then, you should log onto the directory for that particular bar association to see if that attorney’s license is current.

Once you confirm that the attorney you are considering is licensed to practice law, your next question should be what kind of experience does that individual have? There are lots of ways to figure out this information – first – ask. You are the one paying the money here. If the attorney you are speaking with isn’t willing to give you this information and give specific details about this type of work he or she has done in the past, maybe this isn’t the attorney for you. Also read Google reviews from this persons’ previous clients. Is he or she highly rated?

Finally, and perhaps most important of all, try to find family members or friends who have used this person in the past and get their opinion of him. Google reviews can be misleading so the best way to make sure you are hiring the right person is to find someone who has used this attorney before.

Hiring the wrong immigration attorney can lead to very severe consequences for you and your family, and possibly even lead to you being barred from living in the United States for the rest of your life. So when making this decision, take your time and hire the very best lawyer out there.

Christopher Kinnison has a full service immigration practice in Central Louisiana. You can learn more about his practice at http://www.libertylawgroupla.com

What happens if we kill all the lawyers?

Wed, 30 Oct 2019 16:24:00 GMT

This political season has produced a strong anti-trial lawyers sentiment. Some people in power and their political machines claim everything wrong with Louisiana is due to the “trial lawyers.” This claim requires further consideration: What happens if we kill all the trial lawyers?
Let us consider these common events: The average, hardworking Louisiana working class person is not paid for his over-time work, or his car is damaged in a wreck and the insurance company refuses to pay for it, or a bank claims he owes more money on a loan that was paid in full, or when a medical insurer does not pay for medicine for his sick child, or his home insurer decides not to pay for storm damage to his home. What can this person do to enforce his rights and obtain justice? The police cannot do anything. The government will not do anything. And, certainly, the politicians (especially those who complain about trial lawyers) will not get involved (mainly because they wouldn’t dare stand-up to “big money,” who stuff their political pockets with money).

Trial lawyers are the only people who can help our citizens seek justice. However, if there are no trial lawyers, then there is no chance for justice. If there is no justice, there is no accountability. No accountability allows the power players and big money to do whatever they please. If the powerful and big money convince the public to kill all the trial lawyers, they ensure they will not be held accountable. This is what the anti-trial lawyers sentiment is about.

The politicians, who are puppets for big money and corporate America, often point to “those greedy trial lawyers” as the cause of high insurance rates and trouble for Louisiana. While it is true some lawyers are “greedy,” this deadly sin is commonly found in people who work in all trades. Greed is the root cause of why trial lawyers are necessary. When insurance companies and corporate America choose profits over people, they are motivated by greed. If these big money companies would treat us fairly, there would not be much of a need for trial lawyers.

But, after reading this letter, if you still believe trial lawyers are the cause of our problems and high insurance rates in Louisiana, here is what you can do to see the truth of the insurance industry: Call your insurance company and promise to never file a claim or a lawsuit against it for any reason whatsoever. Tell your insurance company when your car or home is damaged, you will gladly accept what it offers, and you will not seek justice. After you make all of these promises, ask your insurance company how much of a discount you will receive when you waive all of your rights against it. You will learn your insurance company will not reduce your insurance rates in exchange for you waiving all of your legal rights. This is the result all of us will experience if the politicians for big money interest have their way with us.

WHO REALLY CAUSES THE INCREASE OF INSURANCE RATES? THE PEOPLE WHO PROFIT FROM IT!

Wed, 20 Mar 2019 18:37:00 GMT

I read a number of articles where the insurance industry calls Louisiana’s judicial system a “judicial hellhole.” This despicable suggestion is offensive. But, the insurance industry is doing more than name calling. It is advancing an agenda. For this agenda to work, the insurance industry needs to market its propaganda. If insurance companies are good at anything, it is marketing. You cannot watch television without seeing insurance propaganda such as, like a good neighbor, being in good hands, Flo, and the silly lizard. Now, the insurance industry is pushing propaganda about Louisiana being a “hellhole.” Insurance companies need us to believe we have a “hellhole” because they are pushing to raise their prices in Louisiana. They need a compelling reason take more of our money for the same old product. This is what the “hellhole” propaganda is all about.

The insurance industry is playing the blame game over the “hellhole” to accuse other for increasing insurance rates. The insurance industry and the politicians, who carry its water point the finger at trial lawyers and the people they represent. This claim is a myth that has been around and repeated for so long, most accept it as true. As a trial lawyer, who represents people, I can assure you this myth is false. Please allow me to explain.

Before Litigation

Let’s consider what happens before a person hires a lawyer. A person is involved in a wreck. His damaged car needs to be towed and stored until it is repaired. He needs medical attention and that leads to the emergency room or doctor visits, which leads to medical tests and medication. He misses work because he does not have a car, or he must see a doctor.

In Louisiana, the politicians give the responsible party’s insurance company 14 days to “initiate property loss adjustment,” which means to inspect the car and get the ball rolling on the repairs. The insurance companies rarely (if ever) do this within this timeframe. The government gives the insurance company 30 days to pay the property damages. More often than not some (but not all) insurance companies pay the shop to repair a vehicle within this timeframe. The law requires an insurance company to pay medical expenses within 30 days, but this rarely happens.

In the face of liberal laws favoring insurance companies, the victim of a car wreck is without a car and has a number of medical bills and hours of lost wage. This leaves the victim with 2 choices: (1) walk away and give up or (2) hire a trial lawyer. When the victim refuses to get taken advantage of and he hires a trial lawyer, the insurance company cries about Louisiana’s “judicial hellhole” and “greedy trial lawyers.” In actuality, the insurance company is really saying: “we should be able to take advantage of the people in Louisiana and never be made to accept the consequences of trying to do it.”

When the victim of a wreck hires a trial lawyer and a lawsuit is filed, the insurance companies and the politicians they control claim Louisiana has a “historically challenging legal environment” and a “judicial hellhole.” They suggest all the lawsuits filed against the insurance companies are the result of frivolous claims, greedy trial lawyers and people looking for jackpot justice. In reaching this assumption, the insurance industry and its pundits do not acknowledge the people of Louisiana are forced to file lawsuits because of the frivolous and greedy tactics by the insurance company. Stated another way, if insurance companies treated our people fairly, there would be no lawsuits. If there is no need for a lawsuit, insurance companies do not need to worry about our justice system.

During Litigation

When lawsuits are filed, the insurance companies allege false defenses. They make wild accusations in an effort to cast blame on the victim of the wreck. Louisiana law requires insurance companies to not misrepresent facts or insurance coverage, but they are uninhibited by these laws. In 18 years of practicing law, I never heard of an insurance company answering a lawsuit by admitting, “we are at fault, we owe the money and we agree to pay it.” Rather, they dream up false claims, spend significant time and money trying to “dig up dirt” to embarrass their victims and they hire “experts” who will say whatever they are hired to say. The lawyers representing insurance companies usually charge $300-$500 an hour and bill many hours pursuing trivial issues. This means the insurance companies are paying high fees for the creation of false defenses and searching for possibly embarrassing information on wreck victims. If insurance companies choose to be fair to victims of car wrecks and not to win at all costs, there would be far less lawsuits.

Insurance companies also pay certain doctors to provide opinions that victims were not hurt or hurt that much from the wreck. Most of the time, these “doctors” develop and render these opinions by only reading some medical records. They often do not examine the people, they do not speak with their treating physicians. Would anyone allow a doctor to operate on you when the doctor simply reviewed some medical records, never met and examined you, and did not consult with your treating doctors? I suspect most (if not all of us) would say, “absolutely not!” But, in the insurance world, they buy opinions from doctors under the same circumstances and have the doctor testify that he knows more about the victim’s injuries than the victim and his treating doctor. Insurance companies pay tens of thousands of dollars for these “opinions” from these types of doctors and they pay more money to its lawyers to get it to work. Again, the insurance company chooses to spend money in this way over paying the actual claim. The insurance companies spend a lot of money doing this and it wants to raise our insurance rates to defray this cost.

The next litigation tactic employed by insurance companies is to stall, delay and contrive the litigation process. The purpose of this is to wear down the victim in the hopes he just gives in or gives up. So, they pay untold sums of money in attorney’s fees and court cost to come up with ways to delay the cases. During these delays, the insurance company sends low-ball offers to settle the case. The insurance company now wants an increase in their rates to pay for these delays.

Finally, when the victim gets his day in court, and there is a judgment in his favor, the insurance company almost always decides to appeal. This decision delays the case even more. They pay its lawyers to appeal the case. Appeals are expensive. During the appeals process, usually the insurance company sends an offer to settle the case. The offer is always far less than the amount of the judgment. They take full advantage of the appeal process and the time it takes. Again, we should not need to pay more money for insurance because insurance companies decide to appeal cases that, in all fairness, should have been settled before a suit was filed.

As you can see, the insurance company has complete control over the claims process. It alone controls its actions and decisions before a lawsuit is filed, during the litigation case and after the case is decided. When a judge or jury takes that control away from the insurance companies, they cry and complain about Louisiana’s “judicial hellhole.” When the insurance industry accuses Louisiana of being a “hellhole,” it is saying Louisiana’s judges and citizens, who serve on juries, are to blame. I do not understand why the insurance industry accuses our judges and citizens of making up a “hellhole” and then sticks its greedy hand out and demand more money from us for insurance. Our judges and jurors are not participants in a “hellhole.” They are good people who look out for their community and neighbors.

Louisiana is not a “judicial hellhole.” Our justice system is nearly the same as any other State in the Union. The courts work the same as other States. The judges decide cases like other judges in the Nation. Jury duty is like the other States. The systems cannot work without people of our community, who show up for jury duty. When the insurance companies are complaining about the justice system in Louisiana, they are complaining about the people who make the justice system work. They are accusing our judges and jurors (every citizen in Louisiana) of making the “hellhole” possible. The insurance industry says we the people are the demons in the “judicial hellhole.” At the same time, the insurance industry blames us for being part of the “judicial hellhole,” and they demand we pay them more money.

Information and Evidence

There will be some who do not agree with this article. My words may be judged harshly because I am a trial lawyer. I welcome and respect debate. To those who disagree I ask, “what evidence do you need to change of your position?” If we are to explore this issue together, we may need to know more about the financial conditions of the insurance companies. At a minimum, the insurance companies should show us:

With this type of information available to those who will be affected by any proposed increase in insurance rates, we can evaluate the real need and intention of the insurance companies. Without this information, we cannot know whether the insurance companies are victims of the alleged “hellhole” or are motivated by a never-ending thirst of corporate greed.

Prescription in Louisiana

In an article published on February 20, 2019, and written by Lee Zurick and Cody Lillich, Zurick: Is Louisiana’s ‘legal hellhole’ to blame for sky-high auto insurance rates? , they reviewed the number of lawsuits filed in California, Texas and Florida and compared them to the number of lawsuits filed in Louisiana. They concluded the number of lawsuits filed in Louisiana “is higher than Miami and Austin.” However, their analysis is faulty because of the failure to account for how the legal time delays permitted in those States work to prevent the need to file a lawsuit.

In Louisiana a lawsuit must be filed within one year from the date of the wreck. If a lawsuit is not filed within this period of time, the victim of the wreck loses his right to seek and obtain justice. The insurance industry wanted this law because it works against the victims of wrecks. However, in California and Texas, a victim of a wreck has 2 years to file suit. In Florida, a person has 4 years to file suit. These more civilized and reasonable periods of time allow more time for the victims of a wreck and insurance companies to resolve their dispute. When the dispute is resolved, there is no need to file a lawsuit.

A Louisiana law that favors the insurance industry requires a lawsuit to be filed within one year from the date of the wreck. This is the shortest time period in the Nation on these cases. If a lawsuit is not filed within this timeframe, the victim of the wreck cannot seek justice. Often insurance companies delay on paying a claim in the hopes of crossing the one-year mark. This law makes lawyers and victims file lawsuits as soon as possible because the consequence of it is drastic. In response to this law, the insurance companies point to the number of suits that are filed against them. However, the law requires victims of car wrecks must file lawsuits within a year.

So, when the insurance industry complains about the number of lawsuits being filed in Louisiana, it is truly complaining about the result of a law it created. But, the one thing we do hear in all the bellyaching by the insurance industry, is it asking the lawmakers of Louisiana to expand the 1-year period of time in which a victim of a wreck can file a lawsuit. The reason we do not hear such a request is because the insurance industry wants all the advantages of the 1-year law and to make more money off of us in the process.

Kill all the Trial Lawyers

Finally, the insurance industry faults trial lawyers as another reason why it wants to make more profits and increase our insurance rates. Simply put, the insurance industry does not want people to have access to trial lawyers. But why? Before we explore this issue, we should determine if insurance companies have the benefit of lawyers or people with special training when they deal with a victim of a car wreck. After all, to be fair, everyone should be on a level playing field, right?

When a person is involved in a wreck and he makes a claim with an insurance company, he will encounter a well trained person, called “claims handlers” or “adjusters.” The adjuster works for the insurance company and is taught how to ask questions that are designed to manipulate the victim’s story. These highly trained people are part of a team of people, included insurance lawyers. Adjusters meet with the insurance company’s team on a weekly basis and discuss how to reduce the exposure of the insurance company in each and every claim. They have one goal: stopping and minimizing the insurance company from paying money.

The adjuster’s job is to find a way to defeat, delay or destroy the claim. One tactic employed by an adjuster is called the “one more rule,” which means the adjuster never has enough information and almost always asks for “one more” piece of information. Another tactic is to find a way to blame the victim for his role in the wreck. Another ploy is to minimize the expenses associated with the wreck. The adjuster relies on his medical training provided by the insurance company and concludes various injuries, medical tests, medical diagnoses, medical treatments or medications were “not related to the wreck.” Also, relying on his insurance company training, the adjuster will look at a photograph of the wrecked vehicle and conclude the victim was not hurt or it is not responsible for all of the property damage. The adjuster almost always comes up with a scheme on what the victim did not do to minimize his damages and refuse to pay for anything after that time.

The playing field is not level when a person deals with an insurance company. There is nothing fair about it or the process. The victim of a wreck does not have specialized training and a team of professionals to create ways to make the claim favorable. Usually, the victims are hardworking and honest people, who just want to do the right thing and be fair. On the other hand, insurance adjusters do not share the idea of honesty and fairness. They work for a company and to survive and flourish within it, they must act with only the company’s financial and best interest in mind.

When a victim of a wreck deals with the insurance company, the insurance industry unquestionably knows it has all of the advantages andthe victim has all the disadvantages. Of course, the insurance industry wants to keep the advantages and that is why it claims trial lawyers are to blame for an increase in insurance rates. Stated another way, the insurance industry does not want a victim of a wreck to know his rights and enforce them. When there is a fair verdict, insurance companies accuse Louisiana of being a “hellhole.”

ENDING “CLOSE ENOUGH FOR GOVERNMENT WORK” IN LOUISIANA’S JURIES

Sun, 21 Oct 2018 22:09:00 GMT

Jurors are heroes. They are the people who answered the call of jury duty. They chose to support our justice system when others made excuses to get out of jury duty. When these unsung heroes willingly report for jury duty and carefully listen to the testimony, evidence and arguments, all of their beliefs and viewpoints should be equally considered and weighed. Each of the juror’s life experiences, wisdom, thoughts, and feelings benefits the jury as a whole. The resulting verdict reflects the collective wisdom and knowledge of all twelve of the jurors.

However, in Louisiana, this process does not happen. Rather, it is just a numbers game. When the first ten jurors make a decision, the case is over. It frankly does not matter what the others have to say, how they feel, what they saw or heard, or how and why they disagree with the other jurors. The result of this “first to ten” means some mother’s child, or spouse or parent will go to prison. But, due to another bad law in Louisiana, the jurors are not to be told of the prison sentence and, as such, have no idea of the consequences of their decision.

How did all of this begin? After the Civil War, Louisiana created the non-unanimous jury verdict where only 10 out of the 12 jurors could vote to convict. When the Civil War ended, plantation owners were in dire need of a certain type of agricultural worker who would work without pay. The politicians wanted to help the wealthy plantation owners by increasing the prison population. With a hefty prison population, Louisiana would lease the prisoners to the plantations. This was called, “convict leasing.” The State of Louisiana made revenue from the lease and saved money by not housing and feeding the prisoners. The politicians were happy because their wealthy constituents were pleased with a supply of cheap workers.

But, Louisiana’s scheme of convict leasing encountered a problem. The juries made up of the good people of Louisiana were not willing to freely convict people of crimes and send them to prison without a strong case. When juries were not convicting people and damning them to prison on a large enough scale, the bureaucrats hastened to increase the prison population to lease to their wealthy constituents. To address this “problem,” the politicians necessary to reduce the number of votes needed to convict. They blew a political dog-whistle and convinced the citizens of Louisiana to abandon unanimous verdicts in favor of a non-unanimous jury system. The Louisiana Constitution was re-written and, just like that, the politicians changed the meaning of “justice.” The immediate and long-term result: Louisiana leads the world in incarceration rates.

The government has taken full advantage of the non-unanimous jury system. Louisiana imprisons more people per capita than Iran, China or any other State in the Union. Sadly, the non-unanimous jury system has led to a number of wrongful convictions, where innocent people were sent to prison for crimes they did not commit. As of 2017, about 22.44% of all exonerations were done with a non-unanimous jury verdict. Keep in mind this percentage is limited to known cases, where significant evidence survived the test of time. These cases do not include the poor souls who died in prison, finished a sentence before the prisoner developed a case after the trial or could not afford to continue to fight and pay for lawyers, scientists, investigators and all the other expenses associated with such cases.

I suspect someone may argue “22% isn’t high enough to change our system.” In response to that argument, please consider what you would do if “just 22%” of aspirin in the bottle of aspirin contained a fatal dose of arsenic. You would immediately throw the bottle away and remove it from your household. You would not argue, “only 22% of them are poisonous.” You and your family would not take any aspirin from this bottle. Under this circumstance, none of us would accept this known risk. If this probability is not safe enough for us and our families, it is not safe enough to expect others and their families to endure it in a jury trial.

When I have a serious problem or an important decision, I ask people for their advice. I suspect we all do at some level. Why do we ask people for advice? Generally, we want the benefit of that person’s life experience, knowledge, wisdom and problem-solving skills. Usually, the bigger the problem or decision, the more people we call on to provide advice. While it is true we do not always accept the advice, we at least know why following careful deliberation. This process is much different from not listening to people and deliberating about it once you get a certain number of answers. To do so precludes the possibility the next answer could be the very best one.

I believe we can trust our neighbors to reach a fair jury verdict. They are in a much better position to reach a verdict after they see the evidence and hear he testimony. Certainly, they are in a better position to make a decision their position is much better than bureaucrats in Baton Rouge who determined they should stop listening to each other after number 10. These bureaucrats have not heard a single witness, they did not look into the eyes of the witnesses, they do not have any idea what the case is about, and they do not know what is at stake. But, in their ignorance, they believe jurors should stop listening once they reach number 10. They believe it simply does not matter what the remaining jurors have to offer, have to say or how they feel. In sum, politicians have decided how outcome will be reached even though they are clueless about the case, the evidence, testimony and the jurors.

Beyond of the immediate concerns of the non-unanimous jury verdict, there is a more personal and painful concern. That concern is how jurors will feel when it is learned they voted to damn someone to prison and they were wrong. They will be haunted by seeing the bailiff put shackles on an innocent person, who is dragged away and thrown in a rusted and filthy cage. They will be haunted by the tears of this poor soul’s parents, spouse or children. We will be haunted by the face of the accused, who was mortified when he heard the verdict. Then they will feel responsibility for taking years from his person’s life and all of the humiliation it caused his family. When it turns out this person was innocent, but 10 jurors decided to convict, it will be the jurors who carry the emotional burden for life. They will experience the very guilt the government wanted them to find. The bureaucrats will not shoulder his burden nor will they accept any blame. They will be tucked away in the safety of some fancy office or home, and they will mock the jurors for having “made the wrong decision” and “got it wrong.” Politicians call this “plausible deniability” and it is a luxury normal people do not have in our lives.

Yet, there is even more pain for the exoneree, who lost the most. While it is true this person is released from prison and it would appear the harm is over, this is just an illusion. When this person was locked away, he was not able to pursue his career, obtain on the job training or formal education. He did not watch his family grow. He did not attend school plays, kindergarten or high school graduation, he did not see his son go to prom, or his daughter’s wedding. He missed the treasured memories of Thanksgiving and Christmas. Most horrid, he experienced and endured unspeakable events in prison. Such an experience with the failure of the criminal justice system erodes any respect for it and law enforcement. All of this leaves scars on a soul. These scars do not fade when the innocent person walks out of prison.

There are only 2 winners in this tragedy- the government and private prison corporations. The State of Louisiana wins because it can more easily convict us and send us to prison. This occurs whether someone is innocent or guilty. The other winner is the private prison industry, such as the Corrections Corporation of American. In Louisiana, prison is a big business. To feed this business, there must be a healthy population of prisoners because prisons are paid a daily fee for each inmate. The more inmates, the more money. To get more inmates, the government is banking on its ability to obtain easily convictions. This is accomplished with non-unanimous jury verdicts and a host of other tools, such as mandatory sentences, laws not allowing juries to know criminal sentences, under-funding public defense systems and over-funding prosecution agencies. Liberty or the lack of it should not be for sale. Freedom is not a commodity.

In November of 2018, the people of Louisiana will have a say in how our jury system will work. We have the ability to change the Louisiana Constitution and require unanimous jury verdicts. Vote “yes” to Ballot Number 2. When you do, we can end the notion of “close enough for government work” in our juries. Juries will be a shield for innocent people and they will protect us from a mindless law that was designed for the powerful and against the powerless.

Don’t Believe The Lie About the Polygraph, It’s Just A Tool of Manipulation

Sun, 04 Feb 2018 20:22:00 GMT

Introduction

Anyone will tell you that polygraphs are not allowed in a court of law. This is not necessarily correct. Most courts might not allow the results of a polygraph examination. However, courts frequently admit statements obtained in the polygraph examination. This may appear to be straightforward, but it is not. Any use of a polygraph is dangerous and manipulative. Basically, many polygraph examiners will claim the subject “failed the polygraph” and push to have the subject change the story. They will claim your brain is suppressing the truth to protect the subject from feeling ashamed or guilty. The subjects assume the polygraph examiner is being honest and then they create a story that the machine accepts as “truth.”

If you are asked to submit to a polygraph, do not agree to it. You will be accused of “having something to hide.” When this occurs, one suggestion is you will agree to a polygraph examination if (a) is not an examiner “bought and paid for” by the government/corporation, (b) you can have others (detectives, victims, witnesses, or insurance adjusters) submit to a polygraph examination on the same day as your examination, (c) when you pass it, the charges against you will be immediately dismissed and you will not be arrested (criminal case) or the corporation/insurance company will immediately pay the full amount your are due (civil matter) and (d) you will receive all notes, records and any other materials created by all of the polygraphs. I suspect you will be told there will not be any agreements. This is because the person asking for the polygraph examination is not interested in seeking the truth, but to develop evidence to be used against you.

Notwithstanding the foregoing, I believe there are honest and ethical polygraph examiners. The likely believe in what they are doing and trust the polygraph. However, I do not believe any of them would testify, under the penalty of perjury, that a person is actually being honest or deceptive. They know the polygraph does not catch everyone all of the time. The opposite is also true: the polygraph does report deception even when the subject is truthful. For this reason, polygraphs are fallible and should be avoided.

The purpose of this post is to provide people with the culmination of my research and inform them of the abuse and misuse of polygraphs. This post results hundreds of hours of researching polygraphs and its use in Louisiana. Ultimately, I reached an inescapable conclusion; a polygraph is not an accurate and scientific instrument. Rather, it is tool of manipulation.

The Myth and History of the Polygraph

According to the ancient Greeks, the first human being owed his existence to a competition staged by Zeus to reward the most inventive of the gods. Ken Alder, The Lie Detectors-The History of an American Obsession , p. xii (2007). It was to be the world’s first science fair, with Momus, the god of criticism, to serve as judge. Id . Each competitor tried to outdo the rest. Id . Athena constructed a magnificent dwelling; Poseidon built the first bull; and Prometheus made the first man. Id . Momus didn’t think much of any of the entries, but he was particularly scathing about man. Id . Athena’s dwelling was so grand it was unmovable; what if its inhabitant’s quarreled with their neighbors? Id . Poseidon’s bull had horns on either side of its head; they would have been more effective up front. Id . And as for Prometheus’s man, he lacked a window in his breast whereby others might look in and see “all the man’s thoughts and wishes…, and whether he was lying or telling the truth.” Id .

For centuries, people have searched for the window into a man’s soul to find honesty. The Greeks developed a science of physiognomy to assess people’s character from their facial features and gestures. Id . On the assumption that anxious deceivers generated less saliva, suspected liars in ancient China were asked to chew a bowl of rice and spit it out. Id . Judges in Indian scanned for curling toes. Id . One pious Victorian physician suggested God endowed human beings with the capacity to blush so as to make their deceptions apparent. Id . Today, there are many books on body language, eye movements, and hand gestures, all claiming to identify deception. Id . However, as we all know, there is no Pinocchio tell. There is no lie detector test that can determine whether people are actually telling the truth or not. Id . There is no window to the soul. Anyone who claims he can see the soul of another and see deception is deceivingly selling deception.

In 1920, a cop with a Ph.D., John Larson, and a high school student, Leoarde Keeler, endeavored to see man’s soul and invented the polygraph. Id . Like Frankenstein’s monster, the polygraph ultimately destroyed the lives of these two gentlemen. One went insane trying to destroy it and the other became so consumed by mistrust, he was driven to an early grave. Id . The polygraph has been applied as psychological torture and has accused many good and innocent men of wrongdoing. See generally , Ken Alder, The Lie Detectors-The History of an American Obsession , (2007). The only deception proven by the polygraph is that it can detect deception.

The National Research Council of the National Academy of Sciences found polygraph tests suffer from unacceptable low accuracy. John J.B. Allen, Never Trust the Polygraph , The Writ p. 15 (October 2013); George W. Maschke and Gino J. Scalabrini, The Lie Behind the Lie Detector , (4 ^th Ed.). Likewise, other studies concluded the “accuracy rates of polygraph test results are unavailable.” Leonard Saxe and Gershon Ben-Shakhar, Admissibility of Polygraph Tests: The Application of Scientific Standards Post-Daubert , Psychology Public Police and Law (March 1999). There is simply no consensus that polygraph evidence is reliable. Id . Various sources of measurement error affect the interpretation of a polygraph examination. Id . Reliability studies of polygraph-based classifications are scarce. Id . There are no studies that estimate the most important sources of measurement error threatening the reliability of a polygraph test’s results. Id . Most research does not fully address key potential threats to validity. See , The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection , p. 3 (2003). Almost a century of research in scientific psychology and physiology provides little basis for the expectation a polygraph test could have extremely high accuracy. George W. Maschke and Gino J. Scalabrini, The Lie Behind the Lie Detector , (4 ^th Ed.)

To be scientifically valid, there must be an overall evaluative judgment of the degree to which empirical evidence and theory support the adequacy and appropriateness of the interpretations of the polygraph test scores. Leonard Saxe and Gershon Ben-Shakhar, Admissibility of Polygraph Tests: The Application of Scientific Standards Post-Daubert , Psychology Public Police and Law (March 1999). Validity also requires interpretations of polygraph results be supported by theoretical rationale and empirical data. Id . The basic nature of deception is unclear and individuals behave in ways that only might seem deceptive, when they are not deceptive. Id . Thus, the concept of deception may be a relative concept, and what may appear to be a complete truth to one person can appear deceptive to another. Id . Truth is often hard to determine and is difficult to disentangle the roles of physiological responses. See , The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection , p. 66 (2003).

The theory supporting polygraph findings must tie deceptive behavior to psycho-physiological response patterns. Id . But, the polygraph examiners have not solidified this tie and only generically infer links between deception and test results. Inferences from polygraph tests presume that deception exhibits unique causes certain psychological reactions and certain physiological concomitants. Id . p. 67. Unfortunately, despite long-standing interest in detection of deception, no theory establishing the relationship between physiological changes and deception exists. Id . Polygraph research has not developed and tested theories of the underlying factors that produce the observed responses. See , The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection , p. 2 (2003). Interpreting physiological activity, as deception is a judgment, not a valid interpretation of test results. Id . There is no theory that ties deception (or any criminal activity) with physiological reactions. Id . Furthermore, there is no unique physiological reaction to deception, and all physiological measures used for polygraph tests are sensitive to, and can be elicited by, a host of factors other than deception or criminal activity. Id . If deception is not uniquely related to physiological reactions, and theory cannot explain the nature of the relationship, it is impossible to predict the conditions under which polygraph test results will be accurate or inaccurate. Id .

Although psychological states often associated with deception (e.g., fear of being judged deceptive) do tend to affect the physiological responses the polygraph measures, these same states can arise in the absence of deception. See , The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection , p. 2 (2003). Moreover, many other psychological and physiological factors (e.g., anxiety about being tested) also affect those responses. Id . at p. 2. Simply said, factors other than truthfulness affect the physiological responses being measured can vary substantially across settings in which polygraph tests are used. Id . at p. 3. There is little knowledge about how much these factors influence the outcomes of polygraphs tests in field settings. Id . The lack of understanding of the processes that underlie polygraph responses makes it very difficult to generalize from the results obtained in specific research settings or with particular subject populations to other settings or populations, or from laboratory research studies to real-world applications. Id .

Nevertheless, based upon the polygraph measurements of several physiological processes, polygraph examiners infer a psychological state, namely whether a person is telling the truth of lying. See , The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection , p.1 (2003). Then the polygraph examiners render an interpretation that involves comparing physiological responses to certain questions and responses to other questions. Id . p. 14. As stated above, the polygraph examiners assume there is a correlation between deceit and physiological responses, and they presume there questions are sufficient to invoke a physiological and physiological reaction. Id . pp. 14-15. Based on these assumptions, the polygraph examiners infer deception. However, should any part of these assumptions be erroneous, the results of the polygraph are suspect at best. This means the polygraph examination and results are completely without any theoretical foundation and validity. George W. Maschke and Gino J. Scalabrini, The Lie Behind the Lie Detector , (4 ^th ed.)

The polygraph subsumes a “baseline for truth.” George W. Maschke and Gino J. Scalabrini, The Lie Behind the Lie Detector , (4 ^th Ed.) To be seemingly valid, the polygraph examiners must prove, with actual evidence, this baseline. There is no precise quantitative estimate of polygraph accuracy. Id . In sum, the field of validity of polygraphy has not been established by competent scientific research, nor can it be. Id .

Psychophysiological testing, like all diagnostic activities, involves using specific observation to ascertain underlying, less readily observable, characteristics. See , The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection , p. 29 (2003). Claims about the quantity or attribute being measured are scientifically justified to the degree the measurements are reliable and valid with respect to the target quantities or attributes. Id . Polygraph examinations and results do no render a scientifically justified degree of quantities or attributes. Id . Without a measure of degree and the strength of it, there cannot be a valid diagnostic decision. Id . Rather, the polygraph measures a physiological reaction, of an unknown degree. Id . Then the polygraph examiners opine what the measurements mean in relation to truth and deception. Id . This subjective process is not reliable because these identical measurements and opinions cannot be repeatable across different times, questions, responses, places, subjects, polygraph instruments, examiners and conditions. There is no test-retest reliability. Id . The threshold of positive and negative evidence changes in each examination. Id . at pp. 42, 46. As such, the polygraph is not a diagnostic test of truthfulness or deception because there are no independent indicators of actual truth or deception. Id . at p. 37.

Furthermore, polygraph examiners have been known to inflate or even fabricate admissions. Id . This may be especially likely to occur when the polygraph examiner believes the charts/recordings indicate deception or simply harbors bias against the subject. Id . It was noted, “polygraph examiners inflate their own figures, mischaracterize what is an admission, all for the purpose of serving their own industry.” Id . Polygraph examiners consider admissions/confessions like a “trophy.” Id . Observational studies of polygraph testing in the field are plagued by selection and measurement bias, such as the inclusion of tests carried out by examiners, with knowledge of the evidence and of cases whose outcomes are affected by the examination. See , The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection , p. 4 (2003). Due to these inherent biases, observational field studies are also highly likely to overestimate real-world polygraph accuracy. Id . The room for any inappropriate motivation or bias in scoring polygraphs negates any semblance of the scientific method. To further complicate and contrive the validity of the polygraph results, the examinations frequently lack a clear and independent determination of truth. Id . Hence, there is absolutely no validation of the polygraph’s results.

Computerized Polygraph Readings

The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph also found that efforts to use technological advances in computerized recording to develop computer-based algorithms that can improve the interpretations of trained numerical evaluators have failed to build a strong theoretical rationale for their choice of measures. See , The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection , p. 196 (2003). They have also failed to date to provide solid evidence of the performance of their algorithms on independent data with properly determined truth for a relevant population of interest. Id . The Committee believed their claimed performance is highly likely to degrade markedly when applied to a new research population and is even vulnerable to the prospect of substantial disconfirmation. Id . In conclusion, computerized scoring theoretically has the potential to improve the validity of hand scoring systems; the Committee did not know how large an improvement might be made in practice; and available evidence is unconvincing that computer algorithms have yet achieved that potential. Id . There is no proof that any software algorithms peddled by polygraph manufactures can determine with mathematical precision the probability that a particular individual is lying or telling the truth. Id .

The difficulties that exist with computerized scoring of polygraph tests also exist, and may be multiplied, with possible expert systems for combining polygraph results with other forms of data. These computerized tests run the risk of unintended outputs due to glitches and errors in algorithms and computer processing. In fact, there have been a number of reported problems with the Lafayette LX 4000. This polygraph model exhibited a “glitch” in measuring the amount of perspiration being released by the subject. The machine equates perspiration with deception. This particular model was reported as “less accurate when the automatic mode is used.” Sarah Sheridan, Reports of Problems with Polygraph Test , Forensic Science in North Carolina (2013). Apparently, there was “an alarming 16-point difference” between manual and automatic modes on this measurement. Id . When presented with this issue, the manufacturer, Lafayette Instrument Company, issued a statement and claimed, “there is nothing wrong with the LX 4000,” it is the “best technology available” and it has “been shown to work satisfactory.” Id . Despite this usual public relations releases, the manufacturer acknowledges its product is “in agreement most of the time” and “there are ‘occasional differences” in its results. No matter how the Lafayette Instrument Company attempts its damage control, we are dealing with the consequences of its “satisfactory” (i.e., close enough for government work or good enough) performance knowing the instrument has known glitches and errors.

The existence of glitches and other errors can go largely unnoticed because the polygraph examiners are not required to pass any certification tests, they are not certified to repair and calibrate their polygraph instruments, and their potential for inaccurate results are higher than most other forensics equipment, which is required to meet certain standards to ensure accuracy. Id . Along these lines, there does not appear to be any indication the polygraph machine’s claimed ability to measure and record is calibrated on a routine basis. Based on the research stated above, the polygraph instrument cannot be calibrated or verified because there are no known independent indicators of actual truth or deception. See , The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection , p. 37 (2003). This fact is most alarming considering the polygraph examiners and their clients’ claim the polygraph machine is a diagnostic one, even though it is never calibrated and its application parity is non-existent.

A polygraph examination is a process involving the examiner in a complex interaction with the instrument and the examinee. Id . at 197. Computerized scoring algorithms to date have not addressed this aspect of polygraph testing. Id . at 197. For example, they have treated variations in comparison questions across tests as unimportant and have not coded for the content of these questions or analyzed their possible effect on the physiological responses being measured. Id . at 197. It is, therefore, possible the examiner’s judgments are based on information unavailable for a computerized scoring algorithm and the examination is invalid. Id . Little evidence is available from the research literature on polygraph testing concerning this possibility. Id .

Consider any applications, the algorithms and computer processing of the polygraph software cannot properly perform unless the parameters are set to “true.” As a binary system, the computer processing cannot “guess” what is “true” or “false.” Accordingly, the computerized scoring of polygraph tests is entirely dependent on what factors the programmer determined and set as “true.” The programmers do not have any training, understanding or comprehension of truth and deception, especially as it concerns the individuality of each subject. Any reliance on the results of a computer application is, therefore, unreliable, invalid and inaccurate.

The Lie of the Polygraph

The polygraph evidence has two general issues, (1) whether the polygraph examiner is an expert and applied proper methodologies in this case and (2) whether the polygraph tests and results are scientifically valid. Admittedly, there is some level of difficulty in separating the polygraph examiner from the polygraph test. It is important to keep in mind the overlap includes a plethora of cases rejecting polygraph evidence, which inherently includes the opinions and findings of the polygraph examiner.

The accuracy of the polygraph needs to be commensurate to the damage it causes. The polygraph results must be completely accurate because it completely ruins the lives and careers of people. However, polygraphs are only considered “evidence” in spy movies and detective novels. As the Judge Weaver noted during a fictitious murder trial,

Ladies and gentlemen of the jury, a polygraph or lie detector test is not admissible in evidence because no one has ever been quite sure that some people couldn’t lie to a lie detector and get away with it.

Robert Traver, Anatomy of a Murder (1903)

Many other experts in the field of deception share this sentiment. In fact, the foremost authority on this subject is Dr. Paul Ekman, who authored Telling Lies p. 165 (2009), who plainly wrote, “[n]o clue to deceit, in face, body, voice, or words is foolproof, not even the autonomic nervous system activity measured by the polygraph.” Further, Dr. Ekman wrote, “[t]he polygraph doesn’t detect lies per se.” Id . at p 198. Another authority, the U.S. Supreme Court, ruled there is “simply no consensus that polygraph evidence is reliable.” United States v. Scheffer , 523 U.S. 303 (1998); Adam Benforado , Unfair-The New Science of Criminal Injustice , p. 144 (2015). Another interesting and applicable point is “the fact that we expect lying to produce bodily manifestations has left us ready to accept an array of dubious lie detectors that seem to offer objective analysis.” Adam Benforado , Unfair-The New Science of Criminal Injustice , p.143 (2015). Trying to spot lies by using the polygraph lie detector is hazardous. Paul Ekman, Telling Lies p. 189 (2009).

Many law enforcement agencies use polygraphs in their investigations; however, the effectiveness of the polygraph has been questioned. Christine H. Orthmann, Karen M. Hess, Criminal Investigations , p. 203 (10 ed. 2013). Science has never been able to accurately determine what, if any, specific physical reactions occur in response to lying or other factors, and the polygraph’s usefulness has long been the subject of harsh criticism from the scientific community. James L. Trainum, How the Police Generate False Confessions , p. 22 (2016). The techniques of lie detection, as used in investigative work by polygraphs, do not pass scientific muster. Id . No “lie detector” of any nature has ever achieved the level of scientific accuracy or support within the scientific community that would allow its findings to be admissible in court. Id . The accuracy and reliability of the polygraph is highly questionable. Id . at p. 76.

Use of False Evidence Poly

Generally, the polygraph is used as a weapon of deceit. Over time, law enforcement agencies began using the polygraph as part of their interrogation tool kit, relying mostly on the mystique of the machine as a foolproof lie detection device. Id . Law enforcement would work to convince the suspect of the machine’s infallibility. The subject would often be confronted with the machine’s response (whether the suspect was provided with accurate information or not was determined by the investigator giving the test), and then officer repeatedly questioned the subject until a confession was forthcoming. Id .

Law enforcement uses this “science” as manipulation. Id . at p. 76. The first step for the investigator is to ask the suspect if he will take a polygraph exam. Id . If the suspect hesitates or refuses, the investigator includes the refusal into the “guilty column” of behavior of the suspect. Id . If the suspect agrees to take the polygraph examination, the polygraph examiner will push to convince the subject of the machine’s infallibility. At this point, it is important to note, “it does not matter if the polygraph works at all as long as the suspect believes that it does.” Id . Then, the polygraph examiner sells the polygraph machine as scientifically proven and impossible to fool. Id . p. 110. Irrespective of the actual results (or the invalidity of them), the investigators inform the suspect he failed the polygraph and should come clean to receive the benefit of cooperation. Id . at p. 110. This is called “use of false evidence poly.” Id . p. 109. Under either of these circumstances, it is clear the polygraph is simply a weapon of deceit, dressed in a gown of science.

The Proponent of the Polygraph Examiner Has the Burden of Proof

The proponents of expert testimony bear the burden of proving the methodology employed by the proposed expert is generally accepted in the appropriate or relevant scientific community. See , State v. Hampton , 15-1222 (La. App. 4 Cir. 12/23/15), 183 So. 3d 769, 779, writ denied , 16-0124 (La. 3/14/16), 189 So. 3d 1073; Wingfield v. State ex rel. Dept. of Transp. & Dev. , 01-2668 (La. App. 1 Cir. 11/8/02), 835 So. 2d 785, 797; Boudreaux v. Bollinger Shipyard , 2015-1345 (La.App. 4 Cir. 06/22/16); 197 So. 3d 761. Nevertheless, whether one believes the polygraph is science or junk science, the proponent of the polygraph evidence must prove its methodology and results are reliable as required by La. Code Evid. Arts. 104, 702, 705 and La. Code Civ. Proc. Art. 1425, State v. Foret , 628 So. 2d 1116 (La. 1993), and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993). The party attempting to admit polygraph evidence through its expert is required to prove the expertise of all of its polygraph experts and, further, the validity of the polygraph test and instrument.

Polygraph Evidence

There is a science of lie detection. Adam Benforado , Unfair-The New Science of Criminal Injustice , p.143 (2015). Polygraph research is like many other fields of forensic science. See , The National Academy of Sciences, Committee to Review the Scientific Evidence on Polygraph, National Research Council, The Polygraph and Lie Detection , p. 98 (2003). As such, the Foret/Daubert requirements are mandatory. Franklin v. Franklin , 2005-1814 (La. App. 1 Cir. 12/22/05); 928 So. 2d 90. The pertinent rule of law of the Louisiana Code of Evidence is Article 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

When faced with a proffer of expert testimony, the trial court must determine at the outset whether the expert is proposing to testify to scientific, technical, or specialized knowledge that will assist the trier of fact to understand the evidence or determine a fact in issue. Carrier v. City of Amite , (La.App. 1 Cir. 2009), 6 So. 3d 893; Corkern v. T.K. Valve , 04-2293 (La. App. 1st Cir. 3/29/06), 934 So. 2d 102, at 105.

The factors to be used by the court in analyzing the admissibility of expert scientific testimony are whether the technique had been subjected to peer review and/or publication, the known or potential rate of error, the existence of standards controlling the technique’s operation, the technique’s refutability or testability, and the technique’s general acceptance in the scientific community. Independent Fire Ins. Co. v. Sunbeam Corp. , 755 So. 2d 226 at 234 n.3 (La. Feb. 29, 2000). When confusion arose over whether the Daubert test applied to non-scientific expert testimony, the United States Supreme Court stated the Daubert’s holding–setting forth the trial court’s general gatekeeping obligation–applies not only to testimony based on scientific knowledge, but also to testimony based on technical and other specialized knowledge. Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999). However, the Supreme Court held the test of reliability is flexible, and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Id . “The factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” Kumho , 526 U.S. at 150, 119 S.Ct. at 1175. “[T]he law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho , 526 U.S. at 141-42, 119 S.Ct. at 1171 (emphasis in original).

The First Circuit, Commonwealth Ins. Co. v. Halliburton Energy Servs ., 2003-2490, 899 So. 2d 24 (La.App. 1 Cir. 12/30/04), stated succinctly the most general reasons for denying the testimony of an expert:

As with any other area of evidence, expert opinion testimony must be measured carefully by the court and the balancing test of La. Code Evid. Art. 403 applied to its effects in order to protect against the expert opinion testimony having too great a prejudicial or confusion effect on the trier of fact. The considerations in applying the La. Code Evid. Art. 403 balancing test of prejudicial versus probative value include the matters allowed under La. Code Evid. Arts. 703 and 704. La. Code Evid. Article 703 allows the expert to use information, as a basis for reaching his opinion, presented to the finder of fact, which does not have to be admissible evidence. Just how far an expert witness can go with his opinion has limitations. See , State v. Butler , 563 So. 2d 976 (La. App. 1st Cir.), cert. denied, mandamus denied , 567 So. 2d 609 (La. 1990).

The Daubert applications, as discussed relative to scientific based expert testimony, have now been applied to all expert testimony and form an element to be considered by every court in qualifying any expert in any field. This application was discussed in Abraham v. Richland Parish Hospital Service District , 39,841 (La. App. 2 Cir. 02/08/05), 894 So. 2d 1229, 1233, where the court held:

Before an expert’s testimony is admitted, the trial court is required to perform a “gatekeeping” function to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharms ., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). This “gatekeeping” obligation applies not only to “scientific” testimony, but to all expert testimony. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). The Daubert nonexclusive list of factors includes: (1) the “testability” of the scientific theory or technique; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the methodology is generally accepted in the scientific community. Daubert was adopted in Louisiana in State v. Foret , 628 So. 2d 1116 (La. 1993). In Cheairs v. State , 2003-0680 (La. 12/03/03); 861 So. 2d 536, the court further specified that admission of expert testimony is proper only if all three of the following things are true: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert ; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.

See also , Wyatt v. Hendrix , 43,559 (La. App. 2 Cir. 11/05/08), 998 So. 2d 233.

A general description of the reasons for refusing an expert’s testimony was provided in Commonwealth Ins. Co. v. Halliburton Energy Servs ., 2003-2490 (La. App. 1 Cir. 12/30/04), 899 So. 2d 24, 30–31 where the court held:

There are three intertwined bases for excluding testimony under art. 702: (1) if the testimony will not assist the trier of fact; (2) if scientific evidence is not sufficiently reliable; and (3) if the particular expert does not have sufficient specialized knowledge to assist the jurors. Generally, experience alone is normally sufficient to qualify a witness as an expert. Cheairs , 03-0680 at p. 8 (La. 12/03/03); 861 So. 2d at 542. The weight to be given to the testimony of experts is largely dependent upon the facts upon which their opinions are based. State v. Estate of Griffin , 95-1464, p. 7 (La. App. 1 Cir. 02/23/96); 669 So. 2d 566, 570.

In applying the principles involved in admitting expert testimony, the court should be careful not to confuse the questioning of the expert’s methodology with that of application. As noted in Tadlock v. Taylor , 2002-0712 (La. App. 4 Cir. 09/24/03), 857 So. 2d 20, 26:

The court need not determine that the expert testimony a litigant seeks to offer into evidence is irrefutable or certainly correct. Keener v. Mid-Continent Cas. , 01-1357, p. 12 (La. App. 5 Cir. 04/30/02); 817 So. 2d 347, 354–355. As with all other admissible evidence, expert testimony is subject to being tested by “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Id . (citing Daubert , 509 U.S. at 596, 113 S. Ct. at 2798). As the jurisprudence indicates, there is a crucial difference between questioning the methodology employed by an expert witness, and questioning the application of that methodology or the ultimate conclusions derived from that application. Only a question of the validity of the methodology employed brings Daubert into play.

The procedure for a Daubert/Foret hearing was codified by the Louisiana legislature, who amended Louisiana Code of Civil Procedure Article 1425 to set out exactly what is required from the parties and the court when conducting such a hearing and ruling on the admissibility of an expert’s proffered testimony. See , 2008 La. Acts, No. 787, § 1. The amended article contains the following pertinent provisions:

* * *

(2) The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days prior to the trial. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence. For good cause shown, the court may allow live testimony at the contradictory hearing.

(3) If the ruling of the court is made at the conclusion of the hearing, the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment. If the matter is taken under advisement, the court shall render its ruling and provide written findings of fact, conclusions of law, and reasons for judgment not later than five days after the hearing.

(4) The findings of facts, conclusions of law, and reasons for judgment shall be made part of the record of the proceedings. The findings of facts, conclusions of law, and reasons for judgment shall specifically include and address:

(a) The elements required to be satisfied for a person to testify under Articles 702 through 705 of the Louisiana Code of Evidence.

(b) The evidence presented at the hearing to satisfy the requirements of Articles 702 through 705 of the Louisiana Code of Evidence at trial.

(c) A decision by the judge as to whether or not a person shall be allowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence at trial.

(d) The reasons of the judge detailing in law and fact why a person shall be allowed or disallowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence.

(5) A ruling of the court pursuant to a hearing held in accordance with the provisions of this Paragraph shall be subject to appellate review as provided by law.

(6) Notwithstanding the time limitations in Subparagraphs (1), (2), and (3) of this Paragraph, by unanimous consent of the parties, and with approval by the court, a motion under this Paragraph may be filed, heard, and ruled upon by the court at any time prior to trial. The ruling by the court on such motion shall include findings of fact, conclusions of law, and reasons for judgment complying with the provisions of Subparagraph (4) of this Paragraph.

Before a witness can testify on the basis of being an expert, and therefore be allowed to testify in the form of opinion or inference, the court must determine not only that his testimony will assist the trier of fact as discussed hereinabove, but the court must also make the determination the witness does in fact “qualify” as an expert in the field of expertise in which he is offered by the proponent of his testimony. The decision by the court as to whether the witness qualifies as an “expert” is within the discretion of the trial court and the trial court’s decision in this regard will be given great weight and will not be disturbed on appeal absent clear abuse. Washauer v. J.C. Penney Co ., 2003-0642, 879 So. 2d 195 (La.App. 1 Cir. 4/21/04); State v. Brooks , 734 So. 2d 1232, 1232 (La. App. 1st Cir. 1999); Safeco Ins. Co. of Am. v. Chrysler Corp ., 2001-1641 (La. App. 3 Cir. 7/31/02), 834 So. 2d 1026,; State v. Ledet , 172, 00-11 (La. App. 5th Cir. 2001), 792 So. 2d 160; State v. Craig, 699 So. 2d 865 (La. 1997); State v. Stringer , 567 So. 2d 758 (La. App. 2d Cir. 1990); De La Cruz v. Riley , 2004-0607 (La. App. 4 Cir. 02/02/05), 895 So. 2d 589; State v. Manning , 03-1982 (La. 10/19/04), 885 So. 2d 1044. However, if a district court conducts no Daubert analysis of any kind, the exclusion of the expert’s evidence without an evaluation of the relevant reliability factors is legal error. Corkern , 934 So.2d at 107.

The Louisiana Supreme Court in Cheairs v. State , 2003-0680 (La. 12/3/03), 861 So. 2d 536, 542; State v. Bozeman , 06-679 (La. App. 5th Cir. 01/30/07) (court allowed a doctor to qualify to testify as a forensic pediatrician based on testimony that child abuse was a specialty) made the following observations and reference to general areas to be considered in allowing an expert to testify:

The above principles should not, however, be interpreted to mean that a court should not consider an expert’s qualifications when deciding whether to admit a particular expert’s testimony, only that the Daubert case does not directly address that issue. In fact, Daubert itself notes that Fed. Rule of Evid. 702, the counterpart of La. Code of Evid. art. 702, “is premised on an assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.” 501 U.S. at 592, 111 S. Ct. 2456. Apparently in recognition of the fact that Daubert does not directly address that issue, the United States Eleventh Circuit Court of Appeal has developed a three-part inquiry to more fully assist district courts in determining all the relevant issues related to the admissibility of expert testimony, with the Daubert analysis serving as one of the three prongs. The three-prong inquiry was first set forth in City of Tuscaloosa v. Harcros Chems., Inc ., 158 F.3d 548 (11th Cir. Ala. 1998), in which the court stated that the admission of expert testimony is proper only if all three of the following things are true:

(1) the expert is qualified to testify competently regarding the matters he intends to address;

(2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert ; and

(3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence, or to determine a fact in issue.

Nevertheless, if an expert opinion is so fundamentally unsupported that it can offer no assistance to the jury, then the testimony can be rejected. Barre v. Bonds, 763 So. 2d 60, 71 (La. App. 4th Cir. 2000); MSOF Corp. v. Exxon Corp . 2004-0988 (La. App. 1 Cir. 12/22/05); State v. George , 39,959 (La. App. 2 Cir. 10/26/05); 914 So. 2d 588. The consideration of the admission of scientific evidence should be conducted by the court under the rules of La. Code Evid. Art. 104A, which specifically provide when making such a decision on the admissibility of evidence, the court is not bound by the rules of evidence other than those applicable to privilege. For this reason, the court may consider any evidence it deems appropriate in making this decision and may do so without regard to whether the supporting evidence complies with such rules as hearsay, etc. In Caubarreaux v. E.I. Dupont de Nemours , 714 So. 2d 67, 71, (La. App. 3d Cir. 1998), the court noted:

… the trial court is mandated to either order a pretrial or status conference under La. Code Civ. P. Art. 1551 to discuss and simplify any Daubert issues or, if still not resolved, hold a pretrial hearing and rule on any pending Daubert issues pursuant to La. Code Evid. 104(a).

Summarizing the application of Daubert in Louisiana, the court in Devall v. Baton Rouge Fire Dep’t , 2007-0156 (La. App. 1 Cir. 11/2/07), 979 So. 2d 500, provided as follows:

In Foret , the Louisiana Supreme Court adopted the federal guidelines for admissibility of an expert’s opinions, as explained by the United States Supreme Court in Daubert . Because LSA-C.E. art. 702 is virtually identical to its source provision in the Federal Rules of Evidence, F.R.E. 702, the Louisiana Supreme Court applied the Daubert analysis, which allows a more flexible standard for determining admissibility while recognizing the detailed analysis in which the trial court must engage to satisfy its gatekeeping function. Foret , 628 So. 2d at 1121–1123. Under Daubert , the trial court is charged with the duty of performing a gatekeeping function to ensure that the expert testimony is not only relevant, but also reliable. Daubert , 509 U.S. at 589, 113 S.Ct. at 2795.

To ensure reliability, the Daubert standard requires that the expert’s opinions be grounded in methods and procedures of science, rather than just subjective belief or unsupported speculation. Accordingly, before expert testimony is admitted, the court must make a preliminary assessment that the reasoning or methodology underlying the testimony is scientifically valid and can be applied to the facts at issue. Daubert , 509 U.S. at 590–593, 113 S.Ct. at 2795–2796; Vardaman v. Baker Ctr ., 711 So. 2d 727, 731 n.6, 96-2611 (La. App. 1 Cir. 03/13/98).

In determining whether expert: testimony is reliable, the Court in Daubert enumerated illustrative considerations to determine whether the reasoning and methodology underlying the testimony is scientifically valid and can properly be applied to the facts at issue, as follows: (1) whether the expert’s theory or technique can be and has been tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) whether there is a known or potential rate of error, and (4) whether the methodology is generally accepted in the scientific community. Daubert , 509 U.S. at 593–594, 113 S. Ct at 2796–2797; Mitchell v. Uniroval Goodrich Tire Company, Inc., 95-0403 (La. App. 4th Cir. 12/28/95), 666 So. 2d 727, 729, writ denied , 96-0260 (La. 03/15/96), 669 So. 2d 421.

The decision to admit or exclude expert testimony is within the sound discretion of the trial court, and its judgment will not be disturbed by an appellate court unless it is clearly erroneous. LSA-C.E. art. 702, comment (d); Mistich v. Volkswagen of Germany, Inc ., 95-0939 (La. 01/29/96), 666 So. 2d 1073, 1079; Mitchell , 666 So. 2d at 729.

Analysis of Polygraph Examiners’ Expertise

As stated above, lie detection is a science. Adam Benforado , Unfair-The New Science of Criminal Injustice , p.143 (2015). As such, the proponent of the polygraph expert witness, must establish the experts proposing to testify will assist the trier of fact to understand the evidence or determine a fact in issue. This is the essence of relevance. Assuming the proponent of polygraph expert witness testimony can get past the post of assisting the trier of fact, it must firmly establish the polygraph examiners’ technique is scientifically valid, appropriate, accurate and reliable. This technique must be testable and repeatable. Further, it must show the polygraph examiners’ technique has been subjected to peer review and show the technique was published in a credible manner. Next, there must be a disclosure of the known or potential rate of error of polygraph examinations and how they were accounted for in this case. The proponent of this polygraph expert testimony, it has to reveal the existence of standards controlling the technique’s operation. They must show the polygraph examiners’ technique’s refutability or testability. They must provide proof the polygraph examiners’ technique and methodology have been generally accepted in the scientific community.

The polygraph examiner must prove his scientific evidence is reliable and its experts have a particularly sufficient specialized knowledge to assist a court. This means the polygraph experts must be qualified to testify in a competent manner and qualify as an expert in the field of expertise they propose to testify about in this case. There must be convincing proof the polygraph examiners applied a methodology by which they reached their conclusions in a reliable manner. The proponent of this evidence must prove its polygraph examiners’ reasoning and methodologies underlying their proposed testimony are scientifically valid and can be applied to the facts at issue. The polygraph examiners must establish the accuracy, provability and reliability of the facts upon which their opinions are based. To satisfy this standard, Daubert requires the polygraph examiners’ opinions be grounded in methods and procedures of science and not simply opinions, subjective belief or unsupported speculation. Lastly, the proponent must prove the probative value of the proposed expert testimony outweighs the prejudicial effect of such testimony. However, the Louisiana Supreme Court previously ruled polygraph evidence is inadmissibility based on this balancing test. State v. Catanese , 368 So. 2d 975, (La. 1979). Accordingly, these alleged polygraph experts should not be permitted to testify.

No Factual Evidence

Furthermore, the factual basis for an expert’s opinion determines the reliability of the testimony. Carrier v. City of Amite , 2008-1092 (La.App. 1 Cir. 02/13/09); 6 So. 3d 893. An unsupported opinion can offer no assistance to the fact finder, and should not be admitted as expert testimony. Miramon v. Bradley , 96-1872 (La. App. 1st Cir. 9/23/97), 701 So. 2d 475, 478. The trial court’s inquiry must be tied to the specific facts of the particular case. The abuse of discretion standard applies to the district court’s ultimate conclusion as to whether to exclude expert witness testimony and to the court’s decisions as to how to determine reliability. Brown v. City of Madisonville , 07-2104, (La. App. 1st Cir. 11/24/08), 5 So. 2d 874. There is a crucial difference between questioning the methodology employed by an expert witness and questioning the application of that methodology or the ultimate conclusions derived from that application. Only a question of the validity of the methodology employed brings Daubert into play. MSOF Corp. v. Exxon Corp ., 04-0988 (La. App. 1st Cir. 12/22/05), 934 So. 2d 708, 718, writ denied , 06-1669 (La. 10/6/06), 938 So. 2d 78.

Analysis of Polygram Examiners’ Factual Basis

The proponent of polygraph evidence must prove a specific and appropriate factual basis for each of the opinions by the polygraph examiners. In the absence of any factual and evidentiary support, their opinions cannot assist the courts and cannot be reliable. Establishing proper and reliable facts is the predicate to any expert opinions. Therefore, until the proponent of polygraph evidences these facts, courts should prohibit any testimony by the polygraph examiners.

Most of the time, the proponent of polygraph evidence is unable or unwilling to produce any evidence and facts that supporting the opinions of the polygraph examiners. Most of the time, they argue the polygraph results alone are sufficient evidence. A similar contention was addressed in Memphis Bank & Trust Co. v. Tennessee Farmers Mut. Ins. Co. , 619 S.W.2d 395 (Tenn. App. 1981), in which an insurer automobile owner and the bank that held his auto loan sued the automobile insurer for the value of the vehicle after the vehicle was stolen. Id . at 396. The insurer refused to pay because the owner failed to pass a polygraph examination, wherein he was asked if he had anything to do with the disappearance of the vehicle, if he helped or planned with anyone to steal his vehicle and if he had any idea where his vehicle was now.

The results of the polygraph examination were the sole basis for the insurer’s refusal to pay. Id . The insurer never had any other information that would indicate a false claim was being made, other than a “gut feeling” precipitated by test results. The district court refused to allow the insurer to give “its only reason for refusal to honor the claim, thus the defendant insurer adduced no proof at the trial.” Id . The jury returned a verdict in favor of the insured and bank, and the insurer appealed. The only issue on appeal was

whether an insurer may show the results of a lie detector test when such test is voluntarily taken by the insured, as evidence of a good faith reason for the refusal to pay a claim.

Id .

The Tennessee Court of Appeals affirmed the trial court’s ruling, noting that:

if [polygraph] tests are unreliable evidence in criminal cases, we see no reason why they should become reliable in civil cases. Unreliable evidence is unreliable evidence in any forum.

Id .

That the evidence was offered for the purpose of showing the insurer’s good faith, and not for the truthfulness or lack thereof of the owner’s answers, was of no matter:

Such evidence has been judicially declared unreliable in law and in fact. That being true, the Court should not permit the introduction of admittedly unreliable evidence as the sole basis of an allegedly good faith act by an insurer. Good faith is characterized by reasonableness. It is not reasonable to act on evidence known to be unreliable. Consequently, such evidence standing alone cannot be the basis of a good faith act.

We believe the soundness of this holding can be evidenced by analogy. If the sole reason for a refusal to pay was what appeared to be nervousness in the insured in answering questions, would a jury be justified, on that evidence alone, in finding that the insurer could refuse to pay in good faith and with impunity? We think not. If a jury did so find, we believe its verdict would be set aside on the grounds that there was no material evidence to sustain it. We see little, if any, distinction to be made between visible material reactions to questions and those electronically monitored. Conclusions drawn therefrom are simply unreliable evidence.

Id . at 397. See also Britton v. Farmers Ins. Group , 721 P.2d 303 (Mont. 1986) (holding polygraph results may not be admitted for purposes of showing “good faith” of insurer in denying claim).

Rulings Regarding Polygraphs

Following the decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, (1993), the status of the admissibility of polygraph evidence has been in flux. Dixon v. City of Coeur d’Alene , 2:10-CV-00078 (U.S. District Idaho). Polygraph evidence remains suspicious. United States v. Cordoba , 104 F.3d 225 (9th Cir. 1997). In fact, courts continue to harbor skepticism of polygraph evidence by opining, “we are not expressing new enthusiasm for admission of unstipulated polygraph evidence,” “the inherent problematic nature of such evidence remains” and “polygraph evidence has grave potential for interfering with the deliberative process.” Id . In United States v. Scheffer , 523 U.S. 303 (1998), the United States Supreme Court sent a cautionary warning when it held criminal defendants have no constitutional right to introduce evidence they “passed” a polygraph. Christopher B. Mueller and Laird C. Kirkpatric, Evidence , § 7.20 (2 Ed. 1999). Scheffer held that a per se ban on polygraph evidence serves a legitimate governmental interest by ensuring only reliable evidence is introduced at trial. Id .

The Ninth Circuit Court of Appeals held that, when presented to a trier of fact, polygraph testimony has “powerful persuasive value.” United States v. Ramirez-Robles , 386 F.3d 1234, 1246 (9th Cir. 2004). The Circuit Court also recognized that polygraphs have a “misleading reputation as a truth teller.” U.S. v. Marshall , 526 F.2d 1349, 1360. “The polygraph testimony would be tantamount to testimony regarding the defendant’s guilt or innocence.” United States v. Cordoba , 991 F. Supp. 1199, 1208 (C.D. Cal. 1998) ( citing United States v. Alexander , 526 F.2d 161, 167-68 (8th Cir.1975) (finding the distinction between an expert’s opinion as to truth or falsity of responses and guilt or innocence is illusory).

In 1975, the United States Court of Appeals for the Eighth Circuit wrote about the risks presented by polygraph evidence in United States v. Alexander , 526 F.2d 161 (8 ^th Cir. 1975), a decision which remains “good law” nearly 42 years later. The defendant of Alexander appealed his conviction, arguing the district court erred in refusing to admit the results of an unstipulated polygraph examination the defendant sought to introduce. The issue presented was “whether the modern polygraph machine and technique have attained sufficient scientific acceptance among experts in polygraphy, psychiatry, physiology, psychophysiology, neurophysiology and other related disciplines to justify admission of the results of an unstipulated polygraph examination in evidence.” Id . at 164.

The Alexander court answered that question in the negative. It excluded the proposed polygraph evidence, providing extensive reasoning that has never been overruled. The court wrote that

[t]here is no ‘lie detector.’ The polygraph machine is not a ‘lie detector,’ nor does the operator who interprets the graphs detect ‘lies.’ The machine records physical responses, which may or may not be connected with an emotional reaction – and that reaction may or may not be related to guilt or innocence. Many, many physical and physiological factors make it possible for an individual to ‘beat’ the polygraph without detection by the machine or its operator.

Id . at 165. Among the numerous constituents that may individually or collectively operate to result in an inaccurate reading are:

(1) the physiological abnormalities of the examinee, which may include high or low blood pressure, respiratory disorders and heart diseases, as well as a state of discomfort or extreme fatigue during the examination;

(2) extreme nervousness or emotional tension by an innocent person who may believe that the polygraph will produce an inaccurate and inculpatory result;

(3) anger or resentment toward the examiner or the questions asked;

(4) inadequate or misleading phrasing of the questions by the examiner; and

(5) a mental abnormality of the examinee, which may include psychosis, psychoneurosis or a psychopathic personality.

Id . The existence of any of these factors “creates either physiological responses or unresponsiveness in the examinee which is unrelated to the truthfulness or falsity of his or her response to a question.” Any accurate ascertainment of an error rate is very difficult,

since the results obtained in a controlled experiment may vary significantly from the results of tests involving actual criminal suspects being tested under more traumatic circumstances. Furthermore, it is often difficult to verify a polygraphist’s conclusion as to a subject’s veracity since there is no assured way in most cases to determine whether the subject was actually being truthful or deceitful.

Id . at 165-66.

The Eighth Circuit concluded while polygraphic evidence advanced significantly since Frye , there remained insufficient “scientific acceptability and reliability to warrant the admission of the results of such tests in evidence.” Id . While acknowledging that a limited number of courts had sanctioned the admission of polygraph evidence under specifically limited circumstances, the court rejected the notion there was a “trend” toward unqualified admissibility of polygraph evidence. Id .

The contemporary trend, including within the United States Court of Appeals for the Eighth Circuit, continues to question the general acceptance of polygraph testing within the scientific community because of continuing concerns about its reliability. United States v. Scheffer , 523 U.S. 303 (1998); United States v. Henderson , 409 F.3d 1293 (11 ^th Cir. 2005); State v. Nightengale , ___ A.2d ___, 2012 WL 5954179 at n.1 (Me. 2012) (holding that results of polygraph tests “are completely inadmissible because they have non-existent value when it comes to determining credibility”); United States v. Pavlenko , 845 F. Supp.2d 1321, 1327 28 (S.D. Fla. 2012); United States v. Gill , 513 F. 3d 836 (8 ^th Cir. 2008) (observing polygraph evidence is disfavored): Ortega v. United States , 270 F.3d 540, 548 (8 ^th Cir. 2001) (holding that “there is simply no consensus that polygraph evidence is reliable”). That some law enforcement agents like and trust polygraphy is immaterial – in court, “[w]hen two witnesses contradict each other, juries, not polygraph tests, determine who is testifying truthfully.” United States v. Swayze , 378 F.3d 834, 837 (8 ^th Cir. 2004).

Over ninety-four years ago, Dean Wigmore noted, “if there is ever devised a psychological test for the valuation of witnesses, the law will run to meet it.” Wigmore on Evidence § 875 (2d ed. 1923). Building on that, the Alexander court observed that

if we were satisfied in our own minds about the scientific reliability of polygraph tests and the integrity and responsibility of the examiners to the extent of an almost unimpeachable result, we would eagerly acknowledge the reliability of the machine and embrace its use in court proceedings in the absence of stipulation by the parties.

Id . at 167.

The Fifth Circuit ruled that polygraph results are inadmissible as substantive evidence. e. g. , United States v. Masri , 547 F.2d 932, 936 (5th Cir. 1977), cert. denied , 431 U.S. 932, 97 S. Ct. 2640, 53 L. Ed. 2d 249 (1977); United States v. Cochran , 499 F.2d 380, 393 (5th Cir. 1974), cert. denied , 419 U.S. 1124, 95 S. Ct. 810, 42 L. Ed. 2d 825 (1975). The Fifth Circuit stated, “American courts have traditionally held such evidence inadmissible in criminal proceedings on behalf of either the prosecution or the defense because the polygraph has not yet been accepted by the courts as a scientifically reliable method of ascertaining truth or deception.” United States v. Frogge , 476 F.2d 969, (5th Cir. 1973)

Louisiana courts have also taken a judicially skeptical view of polygraph evidence. The results of a lie detector test are inadmissible in Louisiana when offered by either party, either as substantive evidence or as relating to the credibility of a party or witness. State v. Catanese , 368 So. 2d 975, 981 (La. 1979)); State v. Davis , 407 So. 2d 702, 706 (La. 1981)).

The court reasoned that such evidence should be excluded because the admission of test results would “usurp[] the jury’s prerogative on a question involving credibility,” and because of “the lack of probative value, insufficient scientific reliability, and the possible unduly prejudicial effect on lay triers of fact.” Id . at 706.

Analysis of Polygraph Evidence

The proponent of polygraph evidence must clearly show and prove the polygraph results were achieved with a scientifically technique valid. The results must be scientifically appropriate, accurate, reliable, testable and repeatable. The polygraph results must have been subjected to peer review and published in a credible manner. The proponent of polygraph evidence must prove the known or potential rate of error of polygraph results and how the rate of error was accounted for in this case. The proponent of polygraph evidence has to show the existence of standards controlling the polygraph instrument’s technique and operation. They must prove that the polygraph result, technique and methodology have been generally accepted in the scientific community.

To prove its results are scientifically valid, accurate and reliable, the proponent of polygraph evidence must prove the polygraph instrument used in this matter can determine whether the subject was actually telling the truth or not. The proponent of polygraph evidence must also convincingly prove the polygraph test applied in this case has a very high level of accuracy. The proponent of polygraph evidence must prove, in a universal manner, that the polygraph test is reliable. The proponent of polygraph evidence is required to prove interpretations of polygraph results are supported by theoretical rationale and empirical data. The proponent of polygraph evidence must convince the courts the theory supporting polygraph findings must tie deceptive behavior to the subject’s psycho-physiological response patterns. The subject’s psycho-physiological responses must unquestionably lead to proof of actual evidence of deception. This claim must be proven with independent facts, proof and evidence deriving from actual events in this particular case and not some propaganda from the polygraph manufacturer. The proponent of polygraph evidence and its polygraph examiners cannot simple infer, theorize, and guess their subjects are deceptive or truthful. The polygraph results must be borne out of actual deception that is provable. However, in the extremely unlikely event of such proof, the admission of polygraph results would be unnecessary.

Summary

Albert Einstein said it best, “whoever undertakes to set himself up as judge in the field of truth and knowledge is shipwrecked by the laughter of the Gods.” What is even more laughable is polygraph examiner’s belief he can judge the truth and determine who is not telling it. However, I cannot agree with the suggestion the only person shipwrecked is the one who pretends to be the judge of truth and knowledge. Usually the proponent of polygraph evidence use such evidence to end careers, deny insurance claims or prosecute innocent people, which I view as the sinking of the subject’s lifeboat. Much like a ship’s captain duty to avoid a shipwreck, the proponent of polygraph evidence has the duty to set a course based on reliable navigational/waypoints. Anything less is a dereliction of duty that set ships adrift.

Quite simply, the proponent of polygraph evidence should not be allowed to hand us a line and not produce actual evidence to prove the validity of the polygraph and the polygraph examiners. The use of actual evidence is not foreign to polygraph examiners. In fact, the best polygraph examiners always note when it comes to using polygraph examination results in an investigation, an investigator should always listen to what the evidence is saying over the polygraph. James L. Trainum, How the Police Generate False Confessions, p. 77 (2016).

A DWI Will Hinder You For Years

Sat, 03 Feb 2018 22:45:00 GMT

One of most common arrests is driving under the influence, also called “D.W.I.” The first and second offenses for D.W.I. charges are misdemeanor offenses. A misdemeanor is considered a “petty” offense. However, even though it is a misdemeanor, if the accused’s “blood alcohol concentration” (BAC) exceeds a certain amount, the law requires a mandatory jail sentence.

The third and subsequent D.W.I. offenses are felony crimes. Again, should the accused’s blood alcohol concentration (BAC) exceeds a certain amount, the law requires a mandatory jail sentence. For felony convictions for a third or subsequent conviction, the law provides for a mandatory minimum prison term. This means judges do not have the discretion or ability to render a sentence that is less than the mandatory minimum sentence.

In addition to a possible jail term, most D.W.I. convictions include the payment of fines, fees, court cost, probation supervision fees, driver improvement classes, drunk driving educations classes, M.A.D.D. classes, hours of community service and fees to restore driver’s license privileges. Often, the attendance of these mandatory classes, community service and reporting to a probation officer cause problems with your work or school schedule. Regarding employment, it could lead to termination, reduction in pay, being passed over for a promotion, missed opportunity for a raise, negative performance reviews or termination. For educational problems, it could lead to missed classes, tests and poor grades.

D.W.I. arrests and convictions have consequences other than fines and jail. For example, when arrested for a D.W.I., the accused’s driving license will be suspended if he does not make a written request for an administrative hearing. This administrative hearing is completely separate from the D.W.I. charges pending in criminal court. Regarding the administrative hearing, the government created laws that work against the accused. These laws make it easy for the State of Louisiana to revoke or suspend your driver’s license.

Also, automobile insurance companies may use a D.W.I. conviction as a reason to increase insurance premiums. The insurance industry will consider the accused to be a “high risk” and raise the insurance rates dramatically. This rate increase can last for many years or, possibly, for the remainder of the accused’s life.

In some situations, the State of Louisiana or the courts may require you to install an expensive ignition interlock device in your automobile. This device detects alcohol in your breath. It will not allow you to start the car or continue to drive it if the breath is not alcohol free.

Additionally, the accused may fail background checks performed by potential employers, the insurance company for the employers, regulatory agencies, college admissions, student loans, scholarships/ financial assistance, housing applications and rental companies (cars and landlords.). A D.W.I. arrest or conviction could affect current employment.

Another problem associated with being arrested is local news media outlets may publicize your arrest. Sadly, there are many bloggers who acquire arrest mugshots, biographical information and arrest information to post it in cyberspace. These shameless opportunists use an arrest to humiliate people. Then, they take advantage of an arrest by charging people to have their names and mugshots removed.

Thomas “Tommy” Davenport, Jr., Receives Platinum Client Champion Award from Martindale-Hubbell®

Mon, 25 Sep 2017 19:48:00 GMT

Thomas “Tommy” Davenport, Jr., of Alexandria, Louisiana, received the Platinum Client Champion award from Martindale-Hubbell®. On September 19, 2017, Martindale-Hubbell® launched its new “Client Champion Award” to recognize attorneys who excel at service and representation as affirmed by their clients. Martindale-Hubble awards this exclusive recognition to lawyers who demonstrate a commitment to client service based on the quantity and quality of their scores on Martindale-Hubbell client reviews. Fewer than 1% of all attorneys have qualified to receive the award. Martindale-Hubble recognizes these attorneys because they epitomize the best in client service. The Platinum Client Champion Award is the top award.

As a trial lawyer, Tommy vigorously advocates against government oppression when his clients are facing loss of freedom, family, job and future. He tirelessly protects his clients from big business and the insurance industry. Tommy has fought for his clients in criminal defense and personal injury cases in Alexandria, Louisiana since 2002.

Thomas “Tommy” Davenport, Jr. Recognized as “America’s Most Honored Professionals” by American Registry

Sun, 15 Jan 2017 04:51:00 GMT

American Registry announced and recognized Thomas “Tommy” Davenport, Jr., as one of “America’s Most Honored Professionals.” This award is the first of its kind and pays tribute to people who when ranked across professions and industries rise to the top of America’s most highly recognized professionals. Honorees are carefully selected from American Registry’s comprehensive database of publicly acknowledged professionals. Qualification criteria include repeated, authenticated, publicized honors from the press, peers, trade groups and clients over a five year period. American Registry is in a unique position to qualify top professionals across industries as its researchers specialize in authenticating the legitimacy and value of professional and business recognitions. Even so, the company built its database of professionals recognized for excellence for more than ten years before honoring the best of the best with its new award, America’s Most Honored Professionals.

Tommy vigorously advocates against government oppression when his clients are facing loss of freedom, family, job and future. He tirelessly protects his clients from big business and the insurance industry. Tommy has fought for his clients in criminal defense and personal injury cases in Alexandria, Louisiana since 2002.

Thomas “Tommy” Davenport, Jr., Receives Coveted AV Preeminent™ Rating By Martindale-Hubbell® For Seventh Consecutive Year

Sun, 15 Jan 2017 04:42:00 GMT

Thomas “Tommy” Davenport, Jr., of Alexandria, Louisiana, received the AV Preeminent™ Peer Review Rating from Martindale-Hubbell® for the seventh year in a row. The AV Preeminent™ rating is the highest and most prestigious designation that an attorney can receive. This rating is a significant accomplishment that is a testament to the fact that Thomas “Tommy” [..] The post Thomas “Tommy” Davenport, Jr., Receives Coveted AV Preeminent™ Rating By Martindale-Hubbell® For Seventh Consecutive Year appeared first on The Davenport Firm APLC.

Thomas “Tommy” Davenport, Jr. Receives “Superb” Rating by Avvo

Sun, 15 Jan 2017 04:34:00 GMT

Alexandria, Louisiana attorney Thomas “Tommy” Davenport, Jr., received a “Superb 10.0 out of 10 Rating” by Avvo. Avvo utilizes a rating system to evaluate a lawyer’s background based on the information available in an attorney’s Avvo profile. The rating is calculated using a mathematical model, and all lawyers are evaluated on the same set of standards. An attorney cannot purchase a good or positive rating with Avvo. The Avvo formula was developed by legal professionals and people looking for legal services. The model used to calculate the rating was developed with input from hundreds of attorneys, thousands of consumers, and many other legal professionals who deeply understand the work attorneys do. Avvo created the rating system to reflect the type of information people have identified as important when looking to hire an attorney. The Avvo rating is a tool that provides a snapshot assessment of a lawyer’s background, and should be considered alongside other information such as client reviews and peer endorsements.

Jailhouse Snitches: The Ticks on the Underbelly of the Criminal Justice System

Wed, 13 Jul 2016 04:06:00 GMT

Everyday, we read newspaper articles or watch television reports that place a spotlight on the failures of the criminal justice system. The most heart wrenching and devastating stories involve the poor souls who were locked in a cage, for years and decades, for crimes they did not commit. We learn of their innocence though DNA evidence, which is so strong it completely and totally refutes juries, judges and prosecutors. But, these are just the cases where DNA evidence was involved.

It is important to remember these people, called exonerees, were convicted of crimes, supposedly based on evidence that proved their cases beyond a reasonable doubt. After the convictions, the cases went before appellate courts, where the convictions and sentences were upheld. At some point, we have to question how and why these innocent people were convicted of crimes when the irrefutable evidence proves their innocence. There are some common reasons why these convictions occur. One of the reasons this happens is because of the testimony of a “jailhouse snitch.”

In all fairness, the general public has not had the benefit of seeing how easily snitch testimony is created and put into action. I suspect most people believe that a prosecutor would not present false testimony. However, not all prosecutors burden themselves with determining whether the snitch testimony is truthful. Sometimes, it is not possible to determine if the snitch’s testimony is truthful. Either way, the testimony of a snitch should not be used to send innocent people to prison.

There may be some disbelief about how easy a snitch can concocted a story and peddle it to the government. In the documentary, The Fear of 13 , Nick Yarris explains how and why he created a story to pin a murder on someone in an effort to minimize his confinement. Mr. Yarris’ effort backfired only because a proper investigation was done into his claims. Unfortunately, the majority of snitch testimony involves an alleged jailhouse confession by the accused. Under these circumstances, it is very unlikely, even impossible, that any investigation could prove or disprove an alleged jailhouse confession. The jailhouse snitch is counting on the fact that his story cannot be disproven. To some extent, so is the prosecutor.

The purpose of this post is to reveal the underbelly of the criminal justice system to the public. Also, I invite the government to completely ban the use of jailhouse snitch testimony.

Snitch Testimony

The “jailhouse snitch” is a person who typically claims to have obtained incriminating statements and/or confessions from the accused. The snitch trades this information for his own benefit without any regard whatsoever for the truth of his testimony. The testimony of jailhouse informants, or “snitches,” is becoming an increasing problem in this state, as well as throughout the American criminal justice system. McNeal v. State , 551 So. 2d 151 (Miss. 1989). In the process of reaping their benefit, they are manipulating the system by helping to convict innocent citizens. See Curriden, “No Honor Among Thieves,” ABA Journal , June 1989, at 51. The Supreme Court of Mississippi warned:

An unholy alliance between con-artist convicts who want to get out of their own cases, law enforcement who’s running a training ground for snitches over at the county jail, and the prosecutors who are taking what appears to be the easy route, rather than really putting their cases together with solid evidence.

McNeal v. State , 551 So. 2d 151 at footnote 2 (Miss. 1989)

Further, the Mississippi Supreme Court advised that snitch testimony “is to be received and considered with caution, as from a polluted and suspicious source.” Dedeaux v. State , 125 Miss. 326, 87 So. 664 (1921); see also , Cool v. United States , 409 U.S. 100 (1972) (there is a “recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity”).

The United States Supreme Court has also expressed serious concern over testimony by a jailhouse snitch. The Supreme Court noted, “[t]he use of informers, accessories, accomplices, false friends, or any of the other betrayals which are ‘dirty business’ may raise serious questions of credibility.” On Lee v. United States , 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). For these reasons, the Supreme Court has held that snitch testimony “ought not be passed upon…under the same rules governing other and apparently credible witnesses…” Crawford v. United States , 212 U.S. 183 (1909).

The Nevada Supreme Court recently noted, “a jailhouse incrimination is available in a fairly large number of homicide cases.” D’Agostino v. State , 107 Nev. 1001, 823 P.2d 283 (1991). In the D’Agostino matter, the court dealt with a jailhouse snitch who shared a cell with the defendant and it observed “[t]here is, of course, no way that D’Agostino could have defended himself against these kinds of unverifiable accusations.” The court reasoned, “[a]bsent any details as to time, place and victim, an accused who must face this kind of incriminating testimony is seriously and unfairly prejudiced when the jury comes together to deliberate as to whether he should live or die.” Further, the court held:

A legally unsophisticated jury has little knowledge as to the types of pressures and inducements that jail inmates are under to “cooperate” with the state and to say anything that is “helpful” to the state’s case. It is up to the trial judge to see that there are sufficient assurances of reliability prior to admitting the kind of amorphous testimony presented to keep this kind of unreliable evidence out of the hands of the jury

Snitches Lead to Wrongful Convictions

Jailhouse snitch testimony is arguably the single most unreliable type of evidence currently used in criminal trials. Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375. Criminal informants, or “snitches,” play a prominent role in this wrongful conviction phenomenon. Comment: The Faces of Wrongful Conviction Symposium: Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 Golden Gate U.L. Rev. 107. According to the Northwestern University Law School’s Center on Wrongful Convictions, 45.9 percent of documented wrongful capital convictions have been traced to false informant testimony, making “snitches the leading cause of wrongful convictions in U.S. capital cases.” Rob Warden, The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row, Center on Wrongful Convictions , Northwestern University School of Law, 2004. Snitches are deeply unreliable witnesses. Many are con artists, congenital liars, and practiced fraudsters. As compensated witnesses, all snitches have deep conflicts of interest. What is worse, jailhouse snitch testimony as a class is not only the least credible type of evidence, but it is also among the most persuasive to jurors because jailhouse informants typically allege to have personally heard defendants confess their guilt to the crimes charged. Id . Introduction of a defendant’s confession, from any source, radically changes the complexion of a case, particularly one lacking other evidence that directly implicates the defendant in the crime. Research studies demonstrate that jurors are simply ill equipped to evaluate the credibility of jailhouse informant testimony and consistently give such testimony far more weight than is due even if they are aware of the incentives jailhouse snitches receive or expect in exchange for their testimony. Id . The prejudicial effect of unreliable jailhouse snitch testimony is magnified by the context in which the evidence is presented to the jury. Jailhouse snitches are States’ witnesses, and the credibility of their testimony is likely substantially bolstered as a result. Prosecutors bolster jailhouse snitch testimony simply by putting them on the witness stand as State’s witnesses, signaling to the jury that the prosecutor believes their testimony is trustworthy. Id . As a result of both implicit and explicit prosecutorial bolstering, jailhouse snitch testimony tends to have an even greater, and potentially more prejudicial, effect on reliable fact-finding. Id .

But informants do not generate wrongful convictions merely because they lie. After all, lying hardly distinguishes informants from other sorts of witnesses. Rather, it is how and why they lie, and how the government depends on lying informants, that makes snitching a troubling distortion of the truth-seeking process. Informants lie primarily in exchange for lenience for their own crimes, although sometimes they lie for money. Alexandra Natapoff, Snitching: The Institutional and Communal Consequences , 73 U. Cin. L. Rev. 645, 652 (2004). In order to obtain the benefit of these lies, informants must persuade the government that their lies are true. Police and prosecutors, in turn, often do not and cannot check these lies because the snitch’s information may be all the government has. Additionally, police and prosecutors are heavily invested in using informants to conduct investigations and to make their cases. Id . As a result, they often lack the objectivity and the information that would permit them to discern when informants are lying. Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment , 68 Fordham L. Rev. 917, 945 (1999). This gives rise to a disturbing marriage of convenience: both snitches and the government benefit from inculpatory information while neither has a strong incentive to challenge it. Comment: The Faces of Wrongful Conviction Symposium: Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 Golden Gate U.L. Rev. 107. The usual protections against false evidence, particularly prosecutorial ethics and discovery, may thus be unavailing to protect the system from informant falsehoods precisely because prosecutors themselves have limited means and incentives to ferret out the truth. Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment , 68 Fordham L. Rev. 917, 945 (1999).

Jailhouse snitch testimony, in fact, is so likely to make a material difference to the outcome of close cases, and so likely to be false, that permitting such witnesses to testify, absent direct corroboration through electronic recording or some other similarly reliable method, should be flatly banned. Id . Numerous commentators have proposed modest fixes to the jailhouse snitch problem. Some have urged the conduct of pretrial reliability hearings. Others have argued for enhanced disclosure obligations regarding informant background and testimony. Still other fixes have been proposed. But given the depth to which jailhouse testimony is compromised, these modest proposals are simply inadequate. Anything less than total abolition of jailhouse snitch testimony is fundamentally insufficient to address what is perhaps the most outrageous and destructive prosecutorial practice currently tolerated by law.

Jailhouse Snitch Testimony is Fundamentally and Pervasively Unreliable

Exoneration studies have identified a set of recurrent causes of wrongful convictions, including false confessions, mistaken eyewitness testimony, and faulty forensic evidence. See, e.g. , Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9 (2011); Samuel R. Gross et al., Exonerations in the U.S., 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 542-44 (2005) However, no evidence is more intrinsically untrustworthy than the allegations of a jailhouse snitch. See, e.g. , The Justice Project, Jailhouse Snitch Testimony: A Policy Review 1 (2007). According to some wrongful conviction scholars, jailhouse snitch testimony is the single greatest cause of wrongful convictions. See Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases , 40 Stan. L. Rev. 21, 57 (1987) (reporting that jailhouse informants testified falsely in 117 of the 350 wrongful convictions studied); Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 6 (2009). This should not be surprising. It is hard to imagine more facially untrustworthy evidence.

The most dangerous informer of all is the jailhouse snitch who claims another prisoner has confessed to him. Stephen S. Trott, Words of Warning for Prosecutors Using Criminals as Witnesses , 47 Hastings L.J. 1381, 1383 (1996). The snitch now stands ready to testify in return for some consideration in his own case. Sometimes these snitches tell the truth, but more often they invent testimony and stray details out of the air. Id . at 1394.

The practice of using jailhouse snitches in serious criminal cases is both pervasive and, as a direct result, a major cause of error in the criminal justice system. Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of American Justice 6 (2009). Although it had long been apparent that jailhouse snitch testimony was sometimes extremely unreliable, the strong link between jailhouse snitches and wrongful convictions has only become clear recently thanks to the still-breaking wave of DNA exonerations. Id . Analysis of the causes of wrongful convictions in these cases reveals that jailhouse snitches have been involved in a surprisingly large percentage of known wrongful convictions – twenty-one percent – according to Innocence Project founders Barry Scheck, Peter Neufeld, and Jim Dwyer. Jim Dwyer et al., Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted 246 (2000). According to the Northwestern University Law School’s Center on Wrongful Convictions, 45.9 percent of documented wrongful convictions in capital cases involved testimony by jailhouse informants or by “killers with incentives to cast suspicion away from themselves, “making” snitches the leading cause of wrongful convictions in U.S. capital cases.” Rob Warden, The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row, Center on Wrongful Convictions , Northwestern University School of Law, 2004. The Commission on Capital Punishment convened by former Illinois Governor George Ryan concluded that testimony from jailhouse informants appeared to be a major cause of wrongful convictions in the cases it looked at involving persons sentenced to death in Illinois. George H. Ryan, Report of the Governor’s Commission on Capital Punishment 7-8 (2002).

Jailhouse Informants Face Overwhelming Temptations to Commit Perjury

Jailhouse snitches testify not out of the goodness of their hearts, but to obtain one or more of a variety of incentives typically offered to them. Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375. These incentives range from almost trivial benefits, like cigarettes, to improved jail conditions and cash payments, up to the gold standard of “cooperation benefits” – release or reduction of jail sentences. Caren Myers Morrison, Privacy, Accountability, and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records , 62 Vand. L. Rev. 921, 935-36 (2009). Indeed, testifying against fellow inmates may often constitute a prisoner’s only hope of escaping a substantial prison term. See Carl N. Hammarskjold, Comment, Smokes, Candy, and the Bloody Sword: How Classifying Jailhouse Snitch Testimony as Direct, Rather than Circumstantial, Evidence Contributes to Wrongful Convictions , 45 U.S.F. L. Rev. 1103, 1106 (2011) (citing Maxwell v. Roe , 628 F.3d 486, 505 n.10 (9th Cir. 2010)) (describing one jailhouse snitch’s boast to have lied in exchange for “$ 30.00 from petty cash” and “some smokes and candy”); Morrison, supra note 18 (noting that a “successful cooperator … might ultimately get years off his sentence or even avoid prison altogether”). The unscrupulous inmate thus faces powerful temptations to serve as a jailhouse snitch. As the Fifth Circuit has observed, “It is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence.” United States v. Cervantes-Pacheco , 826 F.2d 310, 315 (5th Cir. 1987). Another court noted that it was “obvious” that cooperation premised on promises of leniency or immunity “provides a strong inducement to falsify” testimony. United States v. Meinster , 619 F.2d 1041, 1045 (4th Cir. 1980). Even in cases where leniency or immunity is not at stake, the prospect of receiving some tangible reward for false testimony can be irresistible. As one attorney commented, “[w]hen you dangle extra rewards, furloughs, money, their own clothes, stereos, in front of people in overcrowded jails, then you have an unacceptable temptation to commit perjury.” Robert Reinhold, California Shaken over an Informer: He Shows How to Fabricate a Prisoner’s Confession , N.Y. Times, Feb. 17, 1989, at A17 (quoting Robert Berke, a lawyer for California Attorneys for Criminal Justice).

Compensated Snitches Are Inherently Biased

A jailhouse informant is the quintessential self-interested witness. Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375. Anglo-American law has long recognized the potentially distorting effects of self-interest on the accuracy and reliability of legal proceedings. See United States v. Murphy , 41 U.S. (16 Pet.) 203, 210 (1842). Indeed, “self-interested witnesses were barred from testifying under early common law,” and informers in particular were viewed as incompetent witnesses if they stood to directly gain some material benefit from their testimony. Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375 Human judgment is almost inevitably influenced, consciously or unconsciously, by perceived self-interest. See Sean J. Griffith, Deal Protection Provisions in the Last Period of Play , 71 Fordham L. Rev. 1899, 1947-48 (2003)(stating that the existence of self-serving bias has been established in numerous studies). Where persons must decide which of two positions to adopt or accept as true, those who stand to benefit from taking one position rather than another tend to favor the position that furthers their own self-interest. See Ward Farnsworth, The Legal Regulation of Self-Serving Bias, 37 U.C. Davis L. Rev. 567, 569 (2003) (“It has long been understood that when people are better off if something is true, they become more likely to perceive it as true.”). Recognition of the biasing effect of self-interest should provide a significant obstacle against such conduct in criminal cases.

In contrast, a criminal defendant is typically helpless to counter testimony provided by a lying jailhouse informant. This is because defendants cannot usually put on their own “jailhouse snitch,” so criminal defendants lack any opportunity to fight back on an even playing field. In criminal trials there is no “battle of snitches” that might balance competing versions of events. The criminal defendant can try, as many have, to call other inmates to testify that the defendant did not make any jailhouse confession. See, e.g. , Short v. Sirmons , 472 F.3d 1177, 1190 (10th Cir. 2006) (holding that the impeachment testimony of a fellow “cellmate” was not material). But such testimony is, on its face, usually irrelevant, and courts will often bar it as such. Id . Even when allowed, however, it is not likely to be effective. After all, such witnesses cannot prove the negative – that an alleged confession did not actually occur – if the jailhouse informant testifies, as an untruthful jailhouse informant invariably will, that the confession was made out of earshot of other prisoners. Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375. Because “payment” in terms of leniency almost always is granted by the prosecutor after the informant testifies, the informant readily understands that the informant’s chances of getting rewarded are contingent on his delivery of credible incriminating evidence against the defendant. Id .

Jailhouse Snitch Testimony Is Highly Persuasive Evidence

Jailhouse snitch testimony is problematic for another reason. There is, by and large, only one thing to which a jailhouse snitch can testify: that a fellow inmate confessed, and confession evidence is widely acknowledged to possess unique potency. Bruton v. United States , 391 U.S. 123, 139 (1968) (White, J., dissenting). The Supreme has Court observed that confessions are “probably the most probative and damaging evidence that can be admitted.” Id . One prominent evidence scholar asserted “introduction of a confession makes the other aspects of a trial in court superfluous.” C. McCormick, Handbook of the Law of Evidence 316 (2d ed. 1983). Research confirms that evidence that the defendant has confessed greatly increases the odds of conviction. Saul M. Kassin & Katherine Neumann, On the Power of Confession Evidence: An Experimental Test of the Fundamental Difference Hypothesis , 21 Law & Hum. Behav. 469, 471 (1997).In a study conducted by Kassin and Neumann, researchers presented mock jurors with a variety of evidence of guilt and found that jurors were far more likely to convict suspects when the evidence included a confession than when other types of traditional evidence, such as eyewitness identifications or physical evidence, were presented. Id . They thus concluded “confession evidence has a greater impact on jurors – and is seen as having a greater impact by jurors – than other potent types of evidence.” Id .

Secondary confessions – that is, confessions made to witnesses (other than police officers) – are likely not as persuasive to jurors as direct confessions. Lisa Dufraimont, Regulating Unreliable Evidence: Can Evidence Rules Guide Juries and Prevent Wrongful Convictions? , 33 Queen’s L.J. 261, 274 (2008). Jurors do, as a general matter, discount secondary confession evidence to some extent, and jurors may often be unwilling to convict based on secondary confession evidence alone. Id . However, secondary confession evidence remains extremely potent. “Since few species of evidence are as powerful as an acknowledgement of guilt from the mouth of the accused, jailhouse informant testimony can be highly persuasive.” Id . Secondary confession evidence is likely to be particularly critical in “close cases.” Article: Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375. That is, jailhouse snitch testimony is likely to be most influential where the State has some other evidence of guilt, but that other evidence is weak. Cf. , Saul M. Kassin & Holly Sukel, Coerced Confessions and the Jury: An Experimental Test of the “Harmless Error” Rule , 21 Law & Hum. Behav. 27, 27 (1997) (noting that evidence of coerced confessions was extremely influential in a test case where other evidence was weak). And these cases are precisely the cases in which jailhouse snitches are most likely to be used. Jeffrey S. Neuschatz et al., The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decisionmaking , 32 Law & Hum. Behav. 137, 138 (2008). After all, the State must pay a price to induce the jailhouse snitch to testify, and it can be expected to avoid doing so unless prosecutors believe that the testimony is needed. Id . Accordingly, jailhouse snitch testimony will typically only be introduced when the prosecutor is concerned about the sufficiency of her case, and the testimony will tend to have the greatest impact in precisely those cases. Id .

The prevailing assumption by courts, and the justification for admitting jailhouse snitch testimony absent any significant reliability review or assessment, is that jurors are capable of discounting unreliable snitch testimony as the facts and circumstances warrant. See, e.g. , Short v. Sirmons , 472 F.3d 1177, 1190 (10th Cir. 2006) (holding that the impeachment testimony of a fellow “cellmate” was not material). This assumption is almost certainly incorrect. Research on fundamental attribution error demonstrates that jurors cannot properly discount snitch testimony, even when they know that snitches have incentives to lie. C. McCormick, Handbook of the Law of Evidence 316 (2d ed. 1983).

A snitch is highly prejudicial to anyone fighting for his liberty. Snitch testimony is unreliable. A snitch and his tales would contaminate the accused’s right to a fair trial and the judicial process. The government should not be permitted to use a snitch any more than someone who has “bought and paid for” the testimony of any witness. Moreover, there is no evidence that shows the counterweight of a jury instruction regarding the suspicious nature of a snitch is effective.

The bottom line is, too many innocent human beings have been locked in cages or sentenced to death on the perjured testimony of snitches. Rob Warden, The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row, Center on Wrongful Convictions , Northwestern University School of Law, 2004. We cannot and should not ignore this horrible fact. If the Blackstone ratio (it is better that ten guilty persons escape than that one innocent suffer), has any application in modern society, it mandates that innocent people must not be convicted on lies conjured by desperate people, who hope to leverage their freedom on their testimony. If the courts throughout the land had been vigilant in shaping the use and conditions surrounding snitch testimony, approximately 43 fellow humans would not have been wrongfully imprisoned for crimes they did not commit.

Alexandria, Louisiana Criminal Defense Attorney Thomas “Tommy” Davenport, Jr., Receives “Blackstone Order Award.”

Wed, 16 Dec 2015 05:43:00 GMT

Alexandria, Louisiana attorney Thomas “Tommy” Davenport, Jr., was awarded the “Blackstone Order Award” by the Louisiana Association of Criminal Defense Lawyers. The “Blackstone Order Award” recognizes lawyers who strive to remind judges, jurors and even skeptical prosecutors that it is “Better that ten guilty persons escape than that one innocent suffer.” Recipients of this award are the lawyers who implement Blackstone’s ratio in the courtroom. Tommy was admitted into the Blackstone’s Order for his unwavering devotion to justice and unyielding zealousness in advocacy in defending Mrs. Gayle Underwood, who was accused of battering Mayor Jacques Roy during a city council meeting.

Mrs. Underwood is interested in local politics and good government. She frequently attends city council meetings and other public hearings. During a council meeting, the Mayor was squatting down in front of Mrs. Underwood. He was speaking very loud. In fact, he was so loud, the president of the council called for order by wrapping his gavel on his desk, but the Mayor continued on. So Mrs. Underwood tapped him on the shoulder. Then Mayor’s bodyguard charged Mrs. Underwood with criminal conduct, battery. Tommy successfully defended Mrs. Underwood.

Thomas “Tommy” Davenport, Jr., has fought for his clients in criminal defense and personal injury cases in Alexandria, Louisiana since 2002.

Money: The Crack-Cocaine to Insurance Companies

Thu, 22 Oct 2015 03:10:00 GMT

Everyday, we are bombarded with commercials produced by the insurance industry. The commercials promise the insurance company will be like a “good neighbor” and that you will be in “good hands.” These insurance commercials really do a good job in creating the illusion that when you are hurt in a wreck, that you will be treated fairly. In reality, the insurance company only has one goal-to make more money. This is because money is like crack cocaine to the insurance company.

When you are involved in a wreck, the first thing the insurance company will do is have a well trained, seemingly nice and gentle person call you to get your side of the story. This person is called an adjuster or claims handler. The adjuster has been taught on how to ask questions that are designed to manipulate you or your story. The adjuster’s job is to find a way to defeat or destroy your claim.

The insurance company almost never agrees to pay for your property damage, medical bills, lost wages and compensation for your pain and suffering. The insurance company hopes to frustrate you to the point of giving up. If you give up, the insurance company keeps the money that you should have been paid and the adjuster probably gets a bonus.

If you hire an actual Trial Lawyer, someone who will fight for you, and you file a lawsuit, the insurance company will hire some of the best lawyers money can buy. The insurance company will pay “top dollar” to have an insurance defense lawyer do his best to discredit you and have your case dismissed. Commonsense suggests the insurance company should pay the claim and not spend a bunch of money on insurance defense lawyers. Commonsense is not the strong suit of the insurance industry. This is the reason: at the end of the year, the insurance company reports the money paid to the insurance defense lawyer as wages or contract labor. This is a deduction that reduces the taxes paid by the insurance company.

The insurance defense lawyer normally works for a big law firm where there are many associates, law clerks, paralegals, secretaries, investigators and other support staff, all of whom work very hard to defeat your claim. This small army of insurance lawyers will start digging in your past, combing through your social media, reading all of your medical records, talking to all of your former employers, reviewing your credit history and doing everything possible to find a way to shame you for suing the insurance company. As you may have guessed, the insurance company and its lawyer are not working to determine why your claim should be paid, along with your property damage and medical bills.

The insurance defense lawyer and his small army will start filing motions with a judge in an effort to avoid responsibility. These motions often ask the judge to make a lot of decisions about your case or what evidence can be presented at trial. The insurance defense lawyer and his small army will try to overwork or overwhelm your lawyer with motion after motion. He also hopes to frustrate the judge to the point of exhaustion. Too often this tactic works and your claim will suffer.

If these tactics fail and you make it to a trial, the insurance industry has another trick up its sleeve-propaganda! Before you even had a claim, the insurance industry started a propaganda campaign to manipulate possible jurors. For example, the insurance industry blames “greedy trial lawyers” for the increase in insurance rates. The truth is the insurance industry makes billions of dollars. However, if anyone is responsibly for lost revenues, it is the insurance company’s poor choice in making risky investments in the stock market.

Also, the insurance industry claims “runaway juries” hand out “jackpot justice” to undeserving people. The real problem for the insurance company is that it cannot control and manipulate the people on a jury. But, this does not stop it from trying by making up stories about “lawsuit abuse” to make potential jurors biased against plaintiffs.

The insurance industry is counting on its propaganda and the people who believe it to defeat your claim. This is morally and legally wrong on so many levels. If your lawyer were to visit potential jurors to influence them about your case, he would be guilty of jury tampering. If your lawyer would get to the jurors and make them believe they have a financial interest in the outcome of your case (e.g., like the insurance industry claiming insurance rates increase if there is a verdict for a plaintiff), he would be committing a crime. Most importantly, he would be corrupting the jurors by making them believe they have a financial interest in the outcome of the case. But, the insurance industry is not bothered by this dilemma, mainly because it is not a person, who can be held responsible for his actions. So, the insurance industry does this over and over again. Unfortunately, this tactic works and some people show up for jury duty with their minds made up.

Admittedly, all of this sounds a little like a conspiracy. As ugly as it sounds, it is true. The insurance company spends money on marketing and branding. This media campaign creates the illusion that the insurance company is a hero or a good guy. For the people who have not filed a claim with an insurance company, these commercials create a false sense of security. However, for those who have filed a claim with an insurance company, they know that those commercials are just another creation by the writers and producers in Hollywood.

This article is a cautionary one. If you have a claim, you need to be extra-careful when dealing with the insurance company. Try to do all communication in writing or by email. It never hurts to speak with an experienced attorney about your case. When your claim goes into litigation, do not be surprised about your case taking a long time or about the insurance company trying to “dig up dirt” about you. If your case survives all the motions filed by the insurance defense lawyer and you make it to a jury trial, you face another battle, one that began with propaganda. Don’t be surprised that some jurors may look at you as “one of those people,” who is looking for “jackpot justice.”

Attorney Thomas “Tommy” Davenport, Jr., Wins Federal Suit Over Fortunetelling Ban in Alexandria, Louisiana. City Settles!

Fri, 16 Oct 2015 04:58:00 GMT

City of Alexandria settles fortunetelling ban case after receiving two unfavorable rulings by the United States Courts. Thomas “Tommy” Davenport, Jr., represented the fortuneteller.

Thomas “Tommy” Davenport, Jr., wins federal challenge over a fortunetelling ban in Alexandria, Louisiana. Tommy obtained a favorable result for Rachel Adams, doing business as Readings by Faith, who was threatened with arrest and issued a criminal summons after seeking a business permit to offer fortunetelling to the public.

Both U.S. District Judge Drell and U.S. Magistrate Judge Kirk agreed that Mrs. Adams has a constitutional right to free speech, and they declared the fortunetelling ban “unconstitutional.”

U.S. Magistrate Judge Kirk issued a 10 page Recommendation that stated, in part “To apply the ordinance literally would outlaw every ‘amateur psychiatrist, parlor sage and barstool philosopher’ in Alexandria who dares to suggest to another what the future may hold.” Kirk continued dismantling the city’s argument by noting, “This attempt at ‘alchemy’ by the city to turn content-based speech into commercial speech just doesn’t shine … “

“My use of allegory and analogy is intended to demonstrate why we cannot afford to allow government to squelch free thought and speech without a compelling interest, and why even a fortuneteller’s speech must be protected …” and “For a government to believe that it knows all that is true and real, no matter how obvious it thinks it is, is arrogance, pure and simple. Our Constitution protects us from such government oppression,” Kirk wrote.

U.S. District Judge Drell accepted Kirk’s Recommendation and added, “…that the ‘art’ of fortune telling proliferates in front of St. Louis Cathedral, in the City of New Orleans, apparently without incident.”

The City of Alexandria settled with Mrs. Adams paying damages and attorney’s fees in the amount of $16,000

Mrs. Adams was represented by Thomas “Tommy” Davenport, Jr., of Alexandria, Louisiana.

Louisiana Attorney, Thomas “Tommy” Davenport, Jr., Addresses Online Defamation and Cybersmear

Fri, 16 Oct 2015 04:55:00 GMT

The Internet transformed society by providing a wealth of information at your fingertips. Never before has a person had access to such a vast array of information. However, the Internet also provides an unintended avenue for people to use anonymity to post false, defamatory, derogatory and disparaging comments about people and businesses. These posters manipulate or fabricate photographs, images of documents or graphics to mislead readers and embarrass their victims. Online defamation can be very damaging and can destroy careers, families, relationships and businesses.

The posting of defamatory material on the Internet is called “cyber-smear.” The posters do not divulge their identity or use pseudonyms to shield their true identity. Anonymity empowers them to post defamatory content they would not otherwise have posted if they could be identified. Protected by a cloak of anonymity and given a worldwide audience, the posters’ weapon of choice is the Internet. Such people can defame and ruin others at the speed of cyberspace from the comfort of their armchairs without fear of accountability or having their credibility being called into question. Often the posters are competitors, disgruntled/former employees, adverse litigants, sociopaths or bullies, all of whom have an agenda or motive.

These posters use the ubiquity of the Internet to disseminate their cyber-smear because their posts can be accessed from around the world almost instantaneously and without any expense. In fact, the United States Supreme Court has observed, with the Internet “… any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.” Reno v. A.C.L.U., 521 U.S. 844, 870 (1997). Simply stated, the Internet creates the perfect environment for these destructive smear campaigns and rumormongers.

However, there is hope for victims of cyber-smear. Louisiana law affords the recovery of damages and injunctive relief (stopping the defamation) in defamation cases. A civil suit can be filed, and through a series of subpoenas, the Internet Protocol (I.P.) address of the poster of the cyber-smear and the poster’s account information can be revealed. Usually, having the identity of the poster will resolve the cyber-smear. If the cyber-smear does not end, a cease and desist letter can be sent to the poster and to the owner of webpage where the offensive material was posted. If the demand letter is ignored, the lawsuit can be amended to specifically name the poster and the civil case can proceed directly against the poster.

Thomas “Tommy” Davenport, Jr., is a zealous advocate for those who have been harmed by cyber-smear. Tommy can expose the identities of these corporate and personal antagonists and bring an end to their destructive smear and defamation.

Alexandria, Louisiana Criminal Defense Attorney Thomas “Tommy” Davenport, Jr., Receives Coveted AV Preeminent™ Rating and “Client Distinction Award™ By Martindale-Hubbell®

Fri, 16 Oct 2015 04:33:00 GMT

Additionally, Thomas “Tommy” Davenport, Jr. received another award for client satisfaction. For the third year in a row, he awarded the Martindale-Hubbell “Client Distinction Award” for quality service to his clients in a national client survey. The criteria for this award is unsolicited client ratings in the areas of: 1) Communications Ability, 2) Responsiveness, 3) Quality of Service and 4) Value for the Money. The award notification states, “Less than 4% of the 900,000+ attorneys listed on martindale.com and lawyers.com have been accorded this Martindale-Hubbell honor of distinction.” To be considered for this award, the attorney must rate at least 4.5 or higher overall on a 5.0 scale.

Thomas “Tommy” Davenport, Jr., has fought for his clients in criminal defense and personal injury cases in Alexandria, Louisiana since 2002.