State and national media recently devoted major coverage to a federal district judge’s ruling that death row inmates at Louisiana State Penitentiary in Angola are being subjected to cruel and unusual punishment, but an accompanying court ruling leaves open the possibility that attorneys representing the state could be sanctioned, suspended and even disbarred for their activity in the lawsuit.
The sanctions ruling just happens to involve one of Baton Rouge’s major law firms, Shows, Cali and Walsh, which has at least 16 active contracts with various state agencies worth a combined $3 million.
Besides the $30,000 contract dated July 1, 2013, to defend the state in the Angola litigation, the firm currently has:
- A contract for $640,000 with the Louisiana Attorney General for legal services in the Deepwater Horizon oil spill (April 1, 2013 to Mar. 31, 2016);
- A contract for $600,000 with the Division of Administration’s Office of Community Development for legal services to review and analyze Road Home files for overpayments, ineligible grantees and to negotiate and collect funds due the state (May 21, 2013 to May 20, 2016);
- A contract for $500,000 with the Louisiana Workforce Commission (LWC) to provide legal counsel and representation to LWC’s Louisiana Rehabilitation Services Program paid at a rate of $15,000 per month (Feb. 16, 2011 to Feb. 15, 2014);
- A contract for $375,000 with the Louisiana State Board of Nursing to provide legal counsel (July 1, 2013 to June 30, 2014;
- A contract for $300,000 with the Attorney General’s office to provide legal services in the Tobacco Arbitration Funding (April 1, 2013 to Mar. 30, 2016).
The sanctions ruling is significant not only in the identity of the firm and the attorneys involved, but also because it is a reflection of lengths to which the state apparently is willing to go to protect its interests—even to the point of evidence manipulation and an attempted cover up of that activity.
Inmates Elzie Ball, Nathaniel Code and James Magee, who were convicted for the murders of six persons in three separate cases, filed the suit last July, claiming that extreme heat and a lack of cool water in their unventilated cells constituted a health risk. Their petition named as defendants the Department of Corrections, Corrections Secretary James LeBlanc, Angola Warden Burl Cain and Assistant Warden Angelia Norwood.
While death row inmates generally are not sympathetic figures—they’re there, after all, because they killed someone—Judge Brian A. Jackson nevertheless said in a 102-page ruling that conditions violated the 8th Amendment rights of not only the three plaintiffs but all 82 inmates housed on Angola’s death row tiers.
His 51-page ruling on a motion by plaintiffs for sanctions of attorneys representing the state, however, received scant attention, warranting only brief mentions in most news accounts.
His ruling called for a hearing for plaintiff attorneys to show cause why they should not have sanctions imposed for their failure to provide timely discovery to defendants and for a “lack of candor” to judges and to opposing counsel.
And while Judge Jackson declined to impose sanctions for spoliation of evidence in the case, he did order that Shows, Cali and Walsh reimburse plaintiffs for their legal costs for preparing their motion for spoliation “as well as any cost of discovery or fees attendant to the preparation of those filings.”
One of the more egregious sins was that of firm partner Wade Shows who told Judge Jackson that Magistrate Judge Stephen Riedlinger had approved measures taken by plaintiffs to lower temperatures at two of the tiers of death row. Those measures included the installation—under cover of night—of awnings over windows to reduce the intensity of the afternoon sun and of attempts to lower temperatures by installing soaker hoses.
Both steps were taken after Judge Jackson had ordered data collection to measure temperatures and the heat index on death row and were interpreted by the judge as a deliberate attempt to undermine the accuracy of the data collection in defendants’ favor.
Cain, in his deposition, even admitted as much: “We are actually misting the walls of the building to try to see if we can get the cinder blocks to be cooler so then they won’t conduct the heat all the way through.”
But even worse, Shows “asserted that Magistrate Judge Stephen Riedringer ‘knew’ that defendant planned to take such actions, and also asserted that counsel informed Judge Riedlinger of defendants’ intentions during the parties’ settlement conference on July 25.”
Judge Jackson added that defendants’ counsel, in a memorandum opposing plaintiffs’ motion for sanctions, said Riedlinger “endorsed defendants’ modifications to the death row tiers.”
Defendants’ co-counsel Amy McInnis on Aug. 5 “persisted in her position” that Riedlinger “tacitly approved defendants’ actions even after this court cautioned about relating the contents of confidential settlement discussions.”
The biggest problem with Shows’ representation was that it was so easy to ascertain the veracity of his claim. Judge Jackson did, and what he learned must have sent chills down the spines of the state’s attorneys:
“I have conferred with the Magistrate Judge,” Judge Jackson told McInnis. “And he has made it very clear to me, and if necessary, I will produce evidence, that he gave no party any approval to make any material changes.”
Judge Jackson said he felt “it is the case that to the extent there were discussions of the installation of awnings and other devices, that it was …contingent upon a settlement in the case.”
Then, giving McInnis some wiggle room, he said, “So, I want to ask you to be very, very careful, Ms. McInnis. Because if you tell me, as Mr. Shows told me, that the Magistrate Judge knew it and at least tacitly approved it, I am obligated then to verify that.
“And if the one person who is in position to verify that doesn’t verify it, then I’m in a position to impose not just sanctions on the parties. I may have to impose sanctions on counsel.”
Later, in issuing his ruling, Judge Jackson was adamant in his dissatisfaction with defense counsels’ behavior in the matter.
“…This court takes a moment to address its grave reservations regarding defense counsels’ conduct in the course of this litigation. In assessing plaintiffs’ motions for sanctions, it appears that defendants’ counsel deliberately dodged requests for information related to the cost of installing air conditioning; avoided turning over to plaintiffs information regarding defendants’ installation of soaker hoses; and when confronted with information regarding defendants’ willful attempts to manipulate data collection in the death row tiers, excused defendants’ behavior by creating the impression that remedial measures were approved and encouraged by Magistrate Judge Riedlinger. In light of defense counsel’s various representations to opposing counsel and this court—particularly those (who) suggested that the magistrate judge endorsed and approved defendants’ attempts to manipulate data collection in the death row tiers when in fact, no such approval was given—there appears to be a basis to sanction defendants’ counsel individually for lack of candor to the tribunal and lack of candor to opposing counsel.
“The court further finds that sanctions are appropriate based on defendants’ failure to supplement their responses to plaintiffs’ interrogatories with information regarding the installation of soaker hoses on the selected death row tiers.”
In granting plaintiffs’ motions that they seek reimbursement of attorney’s fees and costs, Judge Jackson ordered that plaintiffs file a motion for attorney’s fees and costs from Shows, McInnis and a third attorney.
“It is further ordered, in light of the court’s serious concerns regarding defense counsel’s lack of candor, that defendants’ counsel E. Wade Shows, Amy L. McInnis and Jacqueline B. Wilson show cause why sanctions should not be imposed against each personally…possible sanctions to include, but not limited to, reprimand, ethics training, suspension, disbarment and/or the payment of attorneys’ fees to cover the cost of motions and discovery to this proceeding.”
Just another day of openness, accountability and transparency for the gold standard of ethics in this administration.