In the two years Landon Quinn’s trial attorneys represented him, one was handling 711 other felony cases. The other took on 543, including another time- and resource-consuming death penalty case. The National Advisory Commission on Criminal Justice Standards and Goals recommends that a public defender take no more than 150 cases per year.
Quinn, who is black, was convicted in 2011 for the 2009 robbery and murders of two white men shortly after they left a convenience store in the Treme neighborhood of New Orleans. There was no forensic evidence linking Quinn to the scene. There was no gun to tie him to the crime. Police never found his fingerprints at the scene, and there was no gunshot residue on his hands.
Instead, Quinn was convicted on just a single piece of evidence. It happens to be among the least reliable forms of evidence allowed in a courtroom: cross-racial eyewitness identification.
In 1993 — 18 years before Quinn’s trial — the Louisiana Supreme Court warned that the chronic underfunding of public defense was causing unmanageable caseloads to the point of abrogating the Sixth Amendment rights of defendants. The court wrote that some defendants in New Orleans “are provided with counsel who can perform only pro forma, especially at early stages of the proceedings. They are often subsequently provided with counsel who are so overburdened as to be effectively unqualified.”
That certainly seems to be the case with Quinn. He was tried twice. The first ended with a hung jury. The second jury voted 10 to 2 to convict, which at the time was sufficient for a guilty verdict in Louisiana. (The state now requires a unanimous verdict.) But throughout both trials, Quinn’s attorneys had the evidence to impeach the eyewitness who was the entirety of the state’s case. They also had evidence supporting Quinn’s alibi. Both were sitting in case files the entire time. Neither attorney looked. One of the two later blamed the oversight on his unmanageable caseload.
Quinn has exhausted his state appeals. His best hope , where he faces long odds. The Supreme Court has made clear that federal judges should only intervene in state court rulings under extraordinary circumstances. And while the indigent defense problems in New Orleans can be called a lot of things — tragic, urgent, chronic, unconscionable — it unfortunately cannot be called extraordinary.
The scene in New Orleans
To understand Quinn’s conviction, it’s helpful to know the recent history of indigent defense in New Orleans. Before Hurricane Katrina in 2005, the city didn’t have a public defender’s office staffed with attorneys. Instead, indigent defendants were represented by a patchwork of private attorneys who took cases for a lump sum of $29,000 per year. Most made the bulk of their living in private practice, and that’s where they tended to spend the bulk of their time and attention.
The state’s courts repeatedly ruled this system unconstitutionally deficient. But it didn’t seem to matter. The Louisiana legislature had little interest in funding a better system, and the courts had no power to order it to do so.
After Katrina, criminal justice reformers saw an opportunity to build a new system from the ground up. Idealistic young attorneys came to the city from all over the country to take part, and benefactors donated money to staff a real public defender’s office. It opened in 2007.
But the city’s pre-Katrina problems didn’t go away. Old-guard judges weren’t particularly fond of the carpetbagger do-gooders. Their insistence on providing a rigorous defense clashed with the city’s assembly-line justice. The city’s district attorney’s office has long had a “conviction culture,” racking up long sentences and death sentences, but also rebukes from the courts and frequent exonerations — New Orleans leads the country in wrongful convictions. And Leon Cannizzaro Jr., the district attorney from 2009 through Quinn’s trial to the present, has continued that tradition.
The new attorneys also hit the ground with a massive backlog of cases. The city had ground to a halt after Katrina, so there were almost two years of cases waiting from day one. Some people were still waiting on charges filed before the storm. The overwhelmed new office had to close its doors to new clients just as it had opened those doors to the public.
The post-Katrina public defender’s office was certainly preferable to the old system, but the wave of post-Katrina funding soon dried up. Caseloads soared, and the office was quickly overwhelmed. A 2009 National Association of Criminal Defense Lawyers report found that the Orleans public defenders who handled misdemeanors were saddled with a jaw-dropping 19,000 cases per year, or 47 times the maximum recommended by the National Advisory Commission on Criminal Justice Standards and Goals.
By the time of Quinn’s first trial, the office’s felony attorneys were averaging about 300 cases per year, twice the national standard of 150. Citing data from the ACLU and the National Association of Criminal Defense Lawyers, Mother Jones reported in 2013 that on average, public defenders in New Orleans averaged all of seven minutes per case.
Despite the post-Katrina promise, Quinn’s trial showed that little had changed.
‘Short hair, tight to the head’
Prosecutors first charged Quinn with two counts of first-degree murder, making him eligible for the death penalty. Consequently, his case was assigned to the Louisiana Capital Assistance Center (LCAC), one of three nonprofits that have contracted with the state to provide indigent defense in capital cases. Richard Bourke, director of the LCAC, took Quinn’s case.
While all non-death penalty cases involving indigent defendants go to the state’s overworked and underfunded public defender offices, in response to criticism from state and federal courts, the legislature restructured indigent defense for death penalty cases in 2007, and even provided some funding for the new system. While groups such as the LCAC are still understaffed, they aren’t in as dire condition as public defender offices and have the resources to hire investigators. It was an investigator from the LCAC who found the significant flaws in the state’s case against Quinn.
The murders for which Quinn was convicted took place near a mosque, a few blocks from the convenience store the victims had just visited. Two men claimed to have seen the crime, but only one — Zaid Wakil — claimed he could identify the killer.
There was ample reason to doubt Wakil’s identification, even before he made it. The killer had worn a T-shirt over his face during the attack. Wakil claimed he could identify the assailant by the glimpse of facial features he caught through the head hole in the T-shirt as the assailant ran by. The attack also took place at night. And Wakil caught his glimpse of the attacker as he sat in a truck, while talking on his cellphone.
The police presented Wakil with six photos after the crime, including Quinn’s. All the men in the photos had short-cropped hair. Wakil initially told police he didn’t see the killer in any of the photos — the complexions of all six men were too light. The police told him to disregard skin tone, explaining that the light complexions were a distortion caused by the camera flash. That’s when Wakil pointed to Quinn.
Wakil’s identification grew even less credible when the investigator from the LCAC interviewed him a couple of months later. Consistent with the police lineup photos, Wakil told the investigator that the killer had “short hair, tight to the head.” He also explicitly said that the killer’s hair “didn’t have twists, or anything like that.”
But it turns out that the picture the police used in the photo lineup was a month old. At the time of the murders, Quinn’s hair was in twists.
And it isn’t as if Wakil was circumspect about the killer’s hair. He was adamant. He told the LCAC investigator that because his wife and daughter were Muslim women who wear the hijab, he had experience observing the textures of various hairstyles when covered with light fabric, such as a T-shirt. He also said he could see portions of the killer’s hair that had emerged from under the shirt.
The LCAC investigator then showed Wakil a photo of Quinn taken about a day after the murders. Wakil told the investigator that the man’s hair in the more recent photo was inconsistent with the hair he saw on the killer.
Wakil would later refuse to cooperate with defense investigators for reasons that aren’t entirely clear, but could be explained by his subsequent drug charges (more on that in a minute). So instead, the LCAC investigator signed his own affidavit documenting and detailing his interview with Wakil, then sent it Quinn’s attorneys.
Later, a different LCAC investigator interviewed the man Quinn had identified as an alibi witness. That witness, a friend of Quinn’s, signed affidavit stating that the two were near the attacks, and even heard the gunshots, but that they were playing basketball at the time.
Quinn was eventually indicted on two counts of second-degree murder. The less serious charges meant that Quinn was no longer eligible for the death penalty. The LCAC withdrew from the case and transferred Quinn’s case back to the Orleans Public Defenders office.
The LCAC attorneys sent Quinn’s new attorneys their case file. It included the investigator’s interview with Wakil, the investigator’s affidavit and the affidavit from the alibi witness. The LCAC attorneys also sent an email to one of the new attorneys to underscore the importance of the interview with Wakil. The attorney responded, “Thanks.”
Yet Quinn’s trial attorneys never contacted either LCAC investigator. At trial, they never mentioned the investigator’s interview with Wakil, that Quinn had the very style of hair Wakil explicitly said the killer did not have, or that Wakil said he saw some of the killer’s hair emerging from under the T-shirt. In fact, hair wasn’t discussed at all in the second trial, and Quinn’s alibi witness wasn’t called or mentioned at either trial.
In an affidavit signed in 2015, Quinn’s lead trial attorney said he knew nothing of the investigator’s interview with Wakil until nearly four years after the trial. In his own affidavit filed at the same time, Quinn’s assistant trial attorney acknowledged that the Wakil interview was in the case file, and that he had received the email from the LCAC attorney. He had simply forgotten about it. And both of them apparently forgot to thoroughly review Quinn’s case file.
The assistant trial attorney wrote: “These failures were inadvertent, unintentional oversights by me that were attributable to my unmanageable caseload.”
An unreliable witness
Beyond his ineffective attorneys, there are other problems with Quinn’s conviction. For example, the LCAC investigator should have raised significant doubt in Wakil’s own mind about his identification of Quinn. So why would he go on to identify Quinn in two separate trials?
One reason may be that after Wakil made the identification, the officer who administered the lineup told him he had picked the right man. Multiple studies have shown that this sort of reinforcement from law enforcement makes eyewitnesses more confident in their identification, even when they’ve picked the wrong person.
And what jurors didn’t know is that by the time he testified against Quinn, Wakil was facing some serious drug charges. Six months before he testified, he was found with $1.2 million in cash in his car. Five months later, just a month before his testimony, he was caught shipping himself more than 50 kilos of cocaine. Ten days after that, he was caught with another 11 kilos.
Those drug busts came in other states, and he would ultimately be charged in federal court. There is also no evidence of a deal between Wakil, New Orleans prosecutors or federal prosecutors. Still, it isn’t difficult to see how Wakil might have wanted to avoid undermining a murder prosecution while simultaneously facing his own charges. (In 2015, a federal judge sentenced Wakil to 20 years in prison.)
But Quinn’s trial judge barred his attorneys from asking Wakil about those charge. The judge did allow questions about some less serious crimes from more than a decade ago, but the judge also barred questions about an old conviction for obstruction of justice.
In an astonishingly deceptive closing argument, assistant district attorney David Pipes called Wakil “an unflinching, unassailable, monument to the truth.” In response to a defense attorney’s suggestion that Wakil may have had an incentive to help the state, Pipes retorted, “Currying favors with who for what? A twenty year old conviction. A ten year old conviction? A 2009 conviction? All in other states?”
At the time Pipes made those statements, he knew Wakil was facing major drug charges — he had asked the court to prevent the jury from hearing about them. It’s already questionable to leave out the drug arrests. But it seems particularly dishonest to tell the jury that Wakil was a paragon of truth who wasn’t facing any other charges.
The only other evidence against Quinn is security-camera footage that prosecutors argued showed Quinn proximate to the time and place that the murders occurred. But the videos have inaccurate and contradictory timestamps. It’s also far from clear that it is Quinn in the videos. For example, the state claimed that one three-second clip shows Quinn a few blocks from the scene. But in claiming that it is Quinn in the video, prosecutors asked jurors to compare the man in the footage to the month-old photo of Quinn used in the lineup, when his hair was cropped close, not the photo taken shortly after his arrest. Other footage obtained by Quinn’s defense team showed six different black men in white T-shirts outside the store in the 45 minutes leading up to the attack.
Prosecutors would later incorrectly tell a New Orleans newspaper that one video showed Quinn “wrapping his T-shirt around his head before robbing the men.” According to Quinn’s current attorney, Bourke, there is no such video. Moreover, Quinn himself never disputed that he has sometimes patronized the store, or that he was in the neighborhood on the night of the murders.
But without any real defense from Quinn’s attorneys — no alibi witnesses, no impeachment of Wakil’s identification — that was more than enough. The second jury convicted in just 20 minutes, although by the 10-to-2 vote.
Quinn has been trying to win a new trial ever since. His journey through Louisiana’s appellate courts has been a rough one — two encouraging victories ultimately undone by a resounding defeat. It has also been a lesson in how difficult it can be to get the criminal justice system to cop to its mistakes, and how black judges often view the system through a different lens than many of their white colleagues.
During his direct appeal, Quinn could only raise issues his attorneys had brought up at trial that the trial judge had rejected. Notably, Quinn could not yet raise the issue of his attorneys’ failure to follow up on the LCAC investigator’s interview with Wakil. Consequently, the main thrust of his appeal was a challenge to the trial judge’s decision to bar the jury from hearing about Wakil’s drug charges. In 2013, the Louisiana Fourth Circuit Court of Appeal agreed that the judge was wrong to exclude that evidence, but ruled that the remaining evidence against Quinn was sufficient to uphold his conviction. The Louisiana Supreme Court declined to hear an appeal.
When Bourke, director of the LCAC, heard about Quinn’s conviction and saw how his attorneys had failed him, he agreed to find Quinn pro bono representation for his appeal. When Quinn lost his appeal, Bourke took Quinn’s case personally.
Bourke, a burly, brainy Australian who specializes in U.S. death penalty cases, already had a full plate in overseeing the LCAC and managing his own cases. But he felt a special obligation to Quinn. “I was staggered when I heard that Landon had been convicted, and that the jury had never heard about the inconsistent statements from the eyewitness,” Bourke says. “I couldn’t believe that our investigation — which had blown a hole in the state’s case — had simply gone by the wayside.”
After exhausting a direct appeal, defendants enter what’s called the post-conviction phase of the appeals process. In post-conviction, attorneys can only ask the courts to consider new evidence if that evidence wasn’t available at the time of trial. But there is an exception — they can also ask the courts to consider evidence that was available at trial if they can convince judges that the defendant’s trial attorneys were ineffective for having failed to discover or use it.
The overlooked evidence in Quinn’s case certainly seems persuasive. And at first, the courts seemed to agree. In May 2016, District Court Judge Calvin Johnson granted Quinn a new trial. The longtime New Orleans jurist, who is black, was brutal in assessing the performance of Quinn’s trial attorneys. Johnson pointed out that a critical part of any defense against eyewitness testimony is to file a motion to suppress the identification as quickly as possible. Such a hearing puts the witness’s story on record, and provides time to investigate whether it’s credible. Quinn’s attorneys didn’t try to suppress the eyewitness identification until 11 months after his arrest — on the day of his first trial.
Johnson also dismissed the state’s claim to have footage of Quinn outside the convenience store as “pictures and video of African American males in white tee shirts.”
Johnson went on. “Clearly Quinn’s lawyers did not prepare their case,” he wrote. “They did not research, they did not investigate and most importantly they did not take the time to think about their case … When you look closely at this case you are struck with a level of ineptness that leaves you breathless.”
The Orleans Parish District Attorneys Office appealed Johnson’s ruling to the Louisiana Court of Appeal for the Fourth Circuit. In June 2016, a three-judge panel from that court unanimously upheld Johnson’s ruling. The panel ruled that the attorneys were deficient in failing to follow up on the impeachment evidence, and that the unused evidence “strongly suggests that the defendant was mistakenly identified as the perpetrator.”
The state again appealed, this time to the Louisiana Supreme Court. And it was there that Quinn’s hope for a new trial came to an end. In March of last year, that court reversed Johnson and the unanimous appeals court by a 6-to-1 vote.
The majority opinion for the state Supreme Court focuses on Wakil’s claim to have identified Quinn after catching a fleeting glimpse of his “eyes, eyebrows, nose, and high cheekbones” through the neck hole of the T-shirt stretched over his head. They describe this identification as unequivocal.
The most puzzling part of the opinion comes when the justices describe the surveillance-camera footage alleged to have captured Quinn:
Before resting, the state introduced video footage and still photographs from a public crime camera located outside the convenience store the victims visited immediately before the shootings. The state contended this evidence showed [Quinn] lurking outside the store just before the shooting. This evidence was not presented to the jury in the first trial. Notably, the person depicted on the crime camera wore his hair in short twists.
Quinn and his attorneys, of course, argue that even if it is Quinn in the video, it only proves that he was in the neighborhood. And again, the timestamps on the videos are inconsistent.
But more importantly, as the majority itself points out, this footage was shot before the shooting. Wakil claimed that the assailant, at the time of the murders, had buzzed hair and explicitly said the assailant did not have twists. When he was arrested a day after the shootings, Quinn’s hair was in twists.
The state has argued that this discrepancy didn’t matter, because Quinn had ample time to alter his hairstyle in the 24 to 36 hours between the shooting and his arrest. But for that narrative to be true, Quinn would had to have had his hair in twists before the crimes, shaved or buzzed his hair shortly before committing the murders, then regrown his hair and put it in twists in the day or so between the killings and the mug shot taken after his arrest.
The majority likely realized the absurdity of that narrative and instead went with a different explanation. The court agreed that Quinn’s trial attorneys erred in not introducing the LCAC investigator’s interview with Wakil, or not even bothering to contact the investigator. But the law requires Quinn to show that were it not for his attorneys’ error, “it is reasonably likely the [verdict] would have been different.”
The majority ruled that Quinn failed to meet this burden. While the inconsistencies may have called into question Wakil’s ability to “discern the style of hair beneath a t-shirt worn over it,” Wakil’s identification of Quinn by “eyes, eyebrows, nose, and high cheekbones” was sufficient to uphold his conviction.
Again, that identification was made through the neck hole of a T-shirt, at night, as the killer was running past, while the eyewitness was sitting in a truck on a cellphone. It came after the eyewitness first dismissed all the photos in the lineup for being too light-skinned. And in dismissing Wakil’s description of the assailant’s hair, the court cast aside the one description of the assailant about which Wakil seemed most confident, and for which he provided the most detail. The majority is arguing that Wakil is a credible eyewitness when he has confirmed the state’s case, but not credible when he has contradicted it.
It’s also worth noting that Louisiana appeals courts have now recognized two significant errors during Quinn’s trial. Both directly affect the credibility of the only eyewitness and undermine the state’s only real piece of evidence. In both instances, the courts ultimately held that the errors weren’t enough to undermine confidence in the jury’s verdict. But because of the way the case has played out, the courts have only considered each of these errors separately.
“I disagree with the courts in that I think either of these mistakes should have been enough to get Landon a new trial,” Bourke says. “But taken together, there’s just no question. Wakil’s testimony is all the state had, and both errors would have severely undermined his credibility. Unfortunately, because of the appeals process, the state Supreme Court never considered the combined effect of the errors.”
Oddly, the Louisiana Supreme Court ruling never addresses the failure of Quinn’s trial attorneys to follow up on his alibi witness.
One Louisiana Supreme Court justice dissented from the ruling — Chief Justice Bernette J. Johnson. She is the first African American chief justice of the Louisiana Supreme Court and the only black justice on the court. In a case involving cross-racial witness identification that turns on how a black man wears his hair, it’s notable that of the 11 Louisiana judges and justices to review his post-conviction petition, three were black and eight were white. All three black jurists (and two white ones) would have given Quinn a new trial. The other six who turned him down — all on the state Supreme Court — were all white.
Quinn’s hopes now rest with the federal courts. There, he’ll be able to argue that the combined effect of the trial errors would have been enough to persuade the jury. He’ll also be able to ask the federal courts to consider his alibi witness. Unfortunately, he also faces a much higher hurdle in federal court.
But because of a 1996 law limiting federal appeals by state prisoners — and because of the way the U.S. Supreme Court has interpreted it — it isn’t enough for Quinn to convince the federal courts that the Louisiana Supreme Court was wrong. He’ll need to convince them that the court was so wrong that its justices’ ruling was nearly incompetent.
Meanwhile, little has changed in the New Orleans public defender’s office. Despite editorials, media investigations and even a “60 Minutes” feature, its attorneys still carry untenable caseloads. In 2016, the office was so overworked that its director had to turn away new clients. That year, the office even tried to crowdsource funding, a desperate move that attracted attention and scorn from HBO’s John Oliver. As of 2017, the city’s 60 public defenders were handling 20,000 annual felonies, or more than 330 each. Just last May, the Orleans Public Defenders Office director announced that because of budget cuts, his office would be instituting a hiring freeze — which means the caseloads of his staff will swell even more.
This is a system that victimizes people from both ends. As Louisiana’s highest court refuses to correct the injustices done to people such as Landon Quinn, the state’s lawmakers cut funding for public defenders — thus ensuring there will be more Landon Quinns. And at this point, it seems safe to conclude that too many of Louisiana’s state officials simply don’t care.
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