By KEVIN McGILL
NEW ORLEANS (AP) — A military veteran who was sent to prison for life after selling less than 1 gram (0.04 ounce) of marijuana to an undercover investigator should be allowed to pursue an appeal of the harsh sentence, defense attorneys told the Supreme Court of Louisiana on Monday.
Attorneys representing Derrick Harris said that during a habitual offender sentencing hearing his trial lawyer failed to note mitigating circumstances, including mental health problems and drug addiction following his service during Operation Desert Storm in the 1990s. Those factors would have allowed the judge to impose less than the life sentence called for under Louisiana’s habitual offender statutes, his lawyers at Monday’s hearing said.
“No verbal objection. No evidence. No motion to reconsider sentence,” attorney Cormac Boyle said during arguments held during a special hearing for students and faculty at Tulane University’s law school.
In addition, an appellate lawyer failed to raise some of the trial lawyer’s failures in an initial appeal, according to a brief filed for Harris.
Lower courts held that state law and Supreme Court precedent preclude Harris from pursuing a subsequent post-conviction appeal of his sentence. Attorney Dale Lee, arguing for prosecutors in Vermilion Parish, said there was no reason to depart from that reasoning.
He came under sharp questioning from Chief Justice Bernette Johnson and from Judge James Boddie, who was sitting in for an absent Justice Marcus Clark. Johnson said the court record indicated the sentencing judge at the habitual offender hearing gave no indication he was aware of factors that might have called for a more lenient sentence. “He just said, ‘My hands are tied. Life sentence,’” Johnson said.
Court records show Harris had previous convictions for drugs, simple robbery, burglary and theft in the 1990s. According to a brief filed on his behalf, he sold about $30 worth of marijuana to an undercover officer who knocked on his door on Oct. 2, 2008. Among other examples of ineffective counsel cited in the brief was a failure by a defense lawyer to let Harris know about a possible plea deal that would have resulted in a 7-year sentence.