Discussion of the Decisions of the Appeals Court in State of Louisiana v. Mychal D. Bell (The Jena Six Case)

First, I briefly recount the history and procedural posture of this case, to the extent that I am aware of them, (for those not yet aware of the facts and procedural posture), after which I offer some observations about the current legal situation and what the AfroSpear can do:

History of the Case

Jena, Louisiana has become the focus of international attention and a massive 60,000 strong protest organized by Black "Afrosphere" bloggers, because of a history of color-aoused systemic antagonism, de jure and de facto discrimination in the town. Here is a summary of the facts, posted on April 10, 2007 at the Listen to Me for a Minute Blog, which is authored by Reginald M., who identifies himself at his blog as a "manager, student" who lives in Jena:

On Thursday, August 31, 2006, a small group of black students asked if they could sit under a tree on the traditionally white side of the Jena High School square.

· The students were informed by the Vice Principal that they could sit wherever they pleased.

· The following day, September 1, 2006, three nooses were found hanging from the tree in question. Two of the nooses were black and one was gold: the Jena High School colors.

· On Tuesday night, September 5, 2006, a group of black parents convened at the L&A Missionary Baptist Church in Jena to discuss their response to what they considered a hate crime and an act of intimidation.

· When black students staged an impromptu protest under the tree on Wednesday, September 6, 2006, a school assembly was hastily convened. Flanked by police officers, District Attorney Reed Walters warned black students that additional unrest would be treated as a criminal matter. According to multiple witnesses, Walters warned the black student protestors that, "I can make your lives disappear with a stroke of my pen." This was widely interpreted as a reference to the filing of charges carrying a maximum sentence of life in prison.

· On Thursday, September 7th, police officers patrolled the halls of Jena High School and on Friday, September 8 th, the school was placed on full lockdown. Most students, black and white, either stayed home, or were picked up by parents shortly after the lockdown was imposed. The Jena Times suggested that black parents were to blame for the unrest at the school because their September 5th gathering had attracted media attention.

· Principal Scott Windham recommended to an expulsion hearing committee that the three white boys responsible for hanging the nooses in the tree should be expelled from school.

· On Thursday September 7, 2006, asserting that the noose were merely a silly prank inspired by a hanging scene in the television min-series 'Lonesome Dove', the committee opted for a few days of in-school suspension. The names of the three students were not released to the public for reasons of confidentiality.

· According to press accounts, on September 10, 2006, several dozen black parents attempted to address a meeting of the school board but were refused an opportunity to speak.

· At a second September meeting of the school board, September 18, 2006, a representative of the black families was allowed to give a five-minute statement, but school board refused to discuss the "noose issue" because the matter had been fully addressed and resolved.

· Although few major disciplinary issues emerged during the fall semester at Jena High School, there is strong evidence that several black male students remained unusually agitated throughout the semester and that disciplinary referrals on these students spiked sharply.

· On Thursday, November 30, 2006, the academic wing of the Jena High School was largely destroyed by a massive fire. Officials strongly suspect arson.

· Throughout the following weekend, Jena was engulfed by a wave of racially tinged violence.

· In one incident, a black student was assaulted by a white adult as he entered a predominantly white partly held at the Fair Barn (a large metal building reserved for social events). After being struck in the face without warning, the young black student was assaulted by white students wielding beer bottles and was punched and kicked before adults broke up the fight. It has been reported that the white assailant who threw the first punch was subsequently charged with simple battery (a misdemeanor), but there is no documentary evidence that anyone was charged.

· In a second major incident, a white high school graduate who had been involved in the assault the night before pulled a pump-action shotgun on three black high school students as they exited the Gotta-Go, a local convenience store. After a brief struggle for possession of the firearm, the black students exited the scene with the weapon.

· The Jena Times has reported that, in light of these racially-tinged incidents, several high school teachers begged school administrators to postpone the resumption of classes until the wave of hysteria had dissipated. This request was ignored and classes resumed the morning of Monday, December 4, 2006.

· Shortly after the lunch hour of Monday, December 4, 2006, a fight between a white student and a black student reportedly ended with the white student being knocked to the floor. Several black students reportedly attacked the white student as he lay unconscious. Because the incident took place in a crowded area and was over in a matter of seconds eye witness accounts vary widely. Written statements from students closest to the scene (in space and time) suggest that the incident was sparked by an angry exchange in the gymnasium moments before in which the black student assaulted at the Fair Barn was taunted for having his "ass whipped".

· The victim of the attack is close friends of the boys who have admitted to hanging the nooses in September of 2006.

· Within an hour of the fight, six black students were arrested and charged with aggravated battery. According to The Jena Times, at least a dozen teachers subsequently threatened a "sick-out" if discipline was not restored to the school. According to the Alexandria Town Talk, District Attorney Reed Walters responded to the teacher's threat by upping the charges on the six boys to attempted second-degree murder and conspiracy to commit second-degree murder—charges carrying a maximum sentence of life in prison.

· On the basis of the charges filed by the District Attorney's office, all six black students have been expelled for the remainder of the school year and, according to The Jena Times , several teachers quickly demanded that the accused boys be barred from the school for life.

· On December 13, 2006, District Attorney, Reed Walters published a statement in The Jena Times in which the young men arrested in the school fight incident were characterized as criminals who had been terrorizing both the school and the community. The sloppy wording of the statement and an introduction associating the tirade with the "recent two incidents at Jena High School" created the impression that those accused of involvement in the fight were also suspected of settling the school fire.

· The Louisiana Rules of Professional Conduct 3.6(a) state that: "A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."

· At a January 29 school board meeting called to consider the possibility of reversing the decision to expel the students, District Attorney Reed Walters, appeared as the school district's legal counsel. Although it is standard practice in Louisiana for district attorneys to represent the local school board, there is strong evidence that the disciplinary investigation undertaken by the school and the criminal investigation of the December 4 fight are virtually indistinguishable. This heightens the impression that the charges filed by DA Reed Walters reflect the understandable hysteria engulfing both the student body and the school faculty in the wake of the school fire and a weekend of racial violence. Reginald M., Listen to Me for a Minute Blog, April 10, 2007; Howard Witt, Chigaco Tribune, May 20, 2007. Searching for Justice in Jena 6 Case (Audio)

Legal Processes in State of Louisiana v. Mychal D. Bell

At approximately one p.m. on Monday, December 4, 2006, approximately an hour after a fight between Black students and a white student at the Jena High school cafeteria, six black students, including Mychal D. Bell, were arrested by Jena, La. police and charged with aggravated battery. Jena District Attorney Reed Walters subsequently increased the charges against the six boys to attempted second-degree murder and conspiracy to commit second-degree murder. For those charged as adults, these charges carried a maximum possible sentence of life in prison. Reginal M., Listen to Me for a Minute.

The Jena Times

I've read the four published decisions of the State of Louisiana Court of Appeal, Third Circuit, in the case of State of Louisiana v. Mychal D. Bell:

NO: KW 07-01106, September 14, 2007. (The scanned judgment, with signatures, can be viewed here.)

In this decision, the Court of Appeal, Third Circuit declared that "Defendant was not tried on an offense which could have subjected him to the jurisdiction of the criminal court." The Appeals Court therefore vacated the conviction of Mychal D. Bell and therefore declared that, henceforth, "jurisdiction remains exclusively in juvenile court." And "the ruling of the trial court denying Defendant's motion in arrest of judgment, as to his conviction for aggravated second degree battery, is hereby reversed, vacated and set aside. The motion in arrest of judgment is granted, and the conviction for aggravated second degree battery is vacated."

Effectively, the Appeals Court determined that because Jena District Attorney Reed Walters had unlawfully tried Mychal D. Bell in an adult court, effectively overcharging him and increasing his legal jeopardy to much more than was allowed by law, the Appeals Court ordered that henceforth the District Attorney could proceed against Bell, if at all, only in Juvenile Court.

This decision meant that the "action" in this case would now occur in the Juvenile Court and in the Appeals Court that reviews, oversees and corrects the decisions of Juvenile Court. This decision may have significance for the other defendants, since they were all charged with the same crimes under the same circumstances. If their ages are similar Bell's, within the legal window that the court found applicable, then the Bell case precedent established by the Appeals Court might require that the other five defendants be tried in Juvenile Court as well.

NO: KW 07-01129, September 18, 2007.

Among the relief (help) that Bell had requested from the Appeals Court was a review of the decision of the trial court. However, the Appeals Court had already chosen four days earlier not to review the facts on which Bell was convicted, deciding instead to vacate those convictions entirely. "WRIT DENIED: The issues presented in the Defendant's writ application to this court are moot." See State v. Bell, an unpublished writ opinion bearing docket number 07-1106 (La.App. 3 Cir. 9/14/07)." (Emphasis added.)

NO: KM 07-01142, September 18, 2007.

In this decision, the Appeals Court said:

The motion for release from custody, filed by the Defendant in this court, is premature. The Defendant does not allege that he has filed an application in the trial court seeking release from custody, based on this court's prior ruling vacating his conviction in district court, pursuant to either the habeas corpus provisions of La.Code Crim.P. arts. 351, et. seq., which mandate a hearing on such a motion within seventy-two hours, or the bail provisions of La.Ch.Code arts. NO: KM 07-01142, September 18, 2007.

This is a very hopeful decision for the defendant in terms of returning to the Appeals Court for relief in the future if his case is not resolved fairly in Juvenile Court. This decision was made in response to a petition to the Appeals Court from the defendant, requesting that the Appeals Court order the defendant's release from custody. Normally, appeals courts review decisions that have gone against the defendant in the lower courts. They are called "appeals courts" because their purpose is to review decisions that have already been made.

When this decision was made, apparently the defendant had not gone to the Juvenile Court to request his release from custody. So, the Appeals Court is telling the defendant to do that first, and to appeal the decision of the Juvenile Court, if necessary. The Appeals Court says a decision by it would be "premature" precisely because it would only be ripe for decision if the Juvenile Court refused to order the defendant's release, which is precisely what happened on Friday, September 21. The Juvenile Court denied bail to Bell, which means that an application to the Appeals Court for defendant's release might now no longer be "premature." It might be deemed "right on time."

In this decision, the Appeals Court did not rule on the merits of whether Bell deserved bail or other relief from acts of the Juvenile Court. Instead, it deferred to the Juvenile Court to make a decision(s), which can then be reviewed by the Appeals Court. The use of the word "premature" in this decision is a signal to the District Attorney, the defendant and the Juvenile Court that decisions made by the Juvenile Court may well receive rapid and favorable review if they are not favorable to the defendant.

Courts hate to have their decisions overturned, because it represents a decision by their superiors that the lower court's judgment was in error. To make justice more predictable and out of respect for lower courts, appeals courts try to signal in their decisions the courses of action that lower courts can take to avoid having their decisions overturned. An open door in the Appeals Court, such as a notice that future review is "premature," but likely to occur in the future, should act as a clear notice to the Juvenile Court to act with care and fairness to the defendant.

By specifically stating that "the habeas corpus provisions of La.Code Crim.P. arts. 351, et. seq., [ ] mandate a hearing on such a motion within seventy-two hours, or the bail provisions of La.Ch.Code" the Appeals Court is effectively ordering the Juvenile Court to either grant bail to the defendant or hold a habeas hearing within 72 hours of an application by the defendant. The Appeals Court was also effectively instructing the defendant to file such an application, which the Appeals Court would normally do if it believes that such an application should be given consideration. NO: KM 07-01142, September 18, 2007.

NO: KW 07-01160, September 20, 2007 at 10:30 a.m. [Emphasis added!]

By now, the defendant had submitted a writ of habeas corpus (demand to free the defendant) to the Juvenile Court. So, the Appeals Court order that the "trial [juvenile] court is hereby ordered to conduct a hearing on the Defendant's application for writ of habeas corpus within 72 hours." The Juvenile Court complied, announcing a decision on September 21 denying bail. "The judge has refused to lower his $90,000 bail, citing the teen's record, which includes four juvenile offenses -- two simple battery charges among them." CNN via the Too Sense AfroSpear Blog.

Were it not for these prior juvenile offenses, all of which would likely have been tried in the same juvenile court under the same conditions, it is likely that the Appeals Court would now order that a lower bail be set (lower than the present $90,000) in Bell's case. CNN

One interpretation of the interplay between the District Attorney, the Trial Court, the Juvenile Court in Jena and the State of Louisiana Court of Appeal, Third Circuit is that the Appeals Court is seeking a resolution to the case that will save the state's reputation, while the local officials, including the police, courts and prosecutor, are determined to prosecute these young Black men regardless of the Appeals Court's opinion about the matter. If so, they will maintain their hard line intransigence unless and until they receive a direct order or sufficient pressure from the Appeals Court, the State Supreme Court or another authority compelling them to do otherwise.

Just as Governor Orvil Faubus tried to bar the doors to the desegregation of Arkansas High Schools a half century ago, even in the face of a Federal Court order to desegregate, so the Jena courts seem to be in full revolt against the wisdom of the Louisiana 3rd District Appeals Court. The Juvenile Court, like Jena itself, is intransigent and unreconstructed.

In the AfroSpear, we've got to hang that town with its own nooses in the court of public opinion.

When an appeals court overturns a conviction, and then orders a lower court to hold a bail hearing, the appeals court is normally saying, "Let this person go, or at least set bail that the person is able to make." But appeals courts don't say that directly. They give the hint to the lower court, so that the lower court can maitain its dignity by coming to the right conclusion after a nudging.

In this case, the Jena local courts don't listen to nudges, even when they come from higher courts whose decisions are the law of the land, and whose suggestions and guidance are meant to be heeded.

Now we got to turn up the heat, emphasizing in our blogs that the Jena local courts are in full revolt from the Louisiana justice system and demanding federal intervention (which seems to be coming in the form of Congressman John Conyer's House Judiciary Commitee hearings, which will increase the national focus and pressure. We cannot assume that the Lousiana Third Circuit will rule for Bell when and if he appeals the refusal to lower his bail.

So, we've got to turn this case into a trial of justice in Jena and of justice in America itself, demanding to know, in various forums, what America will do to right this injustice.