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Archive for the ‘Ethics’ Category

You can call last September’s arrest of Jerry Rogers several things:

  • Jerry Larpenter, Chapter Deux;
  • SLAPP;
  • Stupid;
  • All of the Above.

Especially stupid.

To refresh your memory, Rogers, a former St. Tammany Parish sheriff’s deputy, fired off an email to the family of slain Nanette Krentel that was critical of the official investigation into Krentel’s murder. Specifically, he leveled his criticism at lead investigator Det. Daniel Buckner, whom he described as “clueless.”

For his trouble, Sheriff Randy Smith directed that Rogers be arrested for criminal defamation, despite being advised by the St. Tammany Parish District Attorney’s office that the state’s criminal defamation law had been declared unconstitutional as to public officials, according to a LAWSUIT filed by Rogers.

Named as defendants in the litigation are Smith and deputies Danny Culpepper and Keith Canizaro.

The arrest and ensuing lawsuit evoked memories of Terrebonne Parish Sheriff Jerry Larpenter who pulled a similar stunt when he spotted an online blog critical of him and other parish officials and promptly had an obliging judge sign a search warrant empowering Larpenter’s office to conduct a raid on the blogger’s home and to seize his computers. Larpenter, in the glow of his triumph, albeit temporary, crowed that when one criticizes him, “I’m coming after you.”

Except, of course, the warrant and the raid were unconstitutional and Larpenter’s office ended up ponying up about $250,000 to soothe the ruffled feelings of aggrieved blogger.

Just the kind of thing to make one wonder where the judges involved obtained their law degrees and why they would sign off on warrants that were so obviously unconstitutional.

But when considering political expedience, the rule of law often takes a back seat to the sweet (but again, temporary) taste of revenge.

In legal parlance, such legal maneuvers are known as Strategic Litigation Against Public Participation (SLAPP), a tactic honed to perfection during the civil rights era by Southern sheriffs and chiefs of police, particularly in Montgomery and Birmingham, Alabama.

Former Gov. Edwin Edwards, when questioned about his observations immediately after Larpenter’s raid but before litigation had been initiated, quipped, “I’d love to be that blogger’s lawyer.”

Prophetic words indeed. A federal judge held in that case that “no law enforcement officer in Sheriff Larpenter’s position would have an objectively reasonable belief, in light of clearly established law, that probable cause existed to support a warrant for the Andersons’ home” because it was based on criticism of a public official.

Now it’s Jerry Rogers’s turn at bat against another ill-conceived move by a sheriff and district court judge, in this case, one Hon. Raymond Childress.

That’s because as early as 2014, the St. Tammany Parish Sheriff’s Office was reminded of the status of Louisiana’s criminal defamation law, the lawsuit says.

The president of the Louisiana Sheriff’s Association in 2014 “described arresting anyone for an alleged violation of an unconstitutional law as a waste of time and resources,” the lawsuit quotes a newspaper article as reporting.

“Sheriff Smith’s actions were intended to deter and chill Jerry Rogers’ exercise of his First Amendment right to express his opinion about STPSO,” Rogers’s petition asserts.

That, by the way, is a classic definition of a SLAPP lawsuit.

Not only did Judge Childress sign off on the AFFIDAVIT FOR ARREST WARRANT, but the St. Tammany Parish Sheriff’s Office even had the presence of mind to issue a self-serving PRESS RELEASE to announce its diligence in protecting its citizens from being exposed to such defamatory criticism and in the process, declaring its utter disregard of the law.

Except for the decision of the Louisiana Attorney General’s office to DECLINE TO PURSUE the case after noting that the Louisiana Supreme Court had “held [that] criminal defamation is unconstitutional insofar as it applies to statements made in reference to public figures engaged in public affairs.

“…[T]he statements made by Jerry Rogers were aimed directly towards a public function of a member of state government. Because the alleged conduct under these specific facts involve statements aimed at a public official performing public duties, this office is precluded by law from moving forward with any criminal action, Assistant Attorney General Joseph LeBeau wrote on January 8.”

So chastened, there was little wiggle room for the sheriff other than to WALK AWAY from his aborted attempt at retribution.

All of which served to invoke the third option in our multiple-choice observation at the beginning of this post:

Stupid.

 

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In terms of head-scratching bewilderment, the appointment of Stephen Russo as interim secretary of the Louisiana Department of Health (LDH)—even with that word “interim” thrown in—by Gov. John Bel Edwards makes about as much sense as his reappointment of Mike Edmonson as State Police Superintendent back in 2016.

The governor’s announcement of Russo’s appointment to fill in for the departed Dr. Rebekah Gee was made on Friday (Jan. 31).

Compounding the obvious lack of vetting, word is that while a brief story by Sam Karlin in the Baton Rouge Advocate quoted Edwards as saying he has a “long list” of potential candidates for permanent secretary, the fix is apparently in for the appointment of Courtney Phillips. Click HERE to read that story.

I’ll get to Phillips later. First, let me re-hash a couple of LouisianaVoice stories that featured Russo rather prominently—and not in a particularly favorable light.

LouisianaVoice on January 18, 2018, almost two years ago to the day, published a story detailing a sexual harassment lawsuit settlement by an LDH female employee. More specifically, the story told of how the perpetrator, Attorney Supervisor Weldon Hill, was shielded and protected by Hill’s boss, Executive Counsel Stephen Russo. You can read that story by clicking HERE.

When the woman complained to Human Resources and to Hill’s supervisor, she was moved from her eighth-floor office to a converted storage room on the fifth floor. She was not provided a telephone nor was she allowed to take her computer with her to her new location.

Besides the legal settlement, that lawsuit cost the state more than $76,000 in LEGAL FEES.

We followed that story with another exactly three months later on April 18 in which we published a string of emails written by Russo on his state computer on state time on behalf of Dr. Gee during her negotiations  with LSU to retain her medical license, credentials and board certifications through continued part-time employment as a physician at LSU Health Sciences Center in New Orleans.

(That alone should have triggered conflict of interests questions since she would be performing work for an agency overseen by—and which receives funding from—the agency she was heading at the time.)

Her appointment as LDH secretary was announced on Jan. 5, 2016, and by 3:12 p.m. on Jan. 13, Russo was already emailing LSUHSC Chancellor Dr. Larry Hollier on Dr. Gee’s behalf.

A rank and file employee would be called on the carpet and perhaps fined for such a breach of ethics. A civil service employee of another agency, for example, was once fined $250 because a vendor had sent her—unsolicited—a baked ham for Christmas.

So, now the message is clear: vastly different standards apply dependent upon whether you are a rank-and-file civil servant or a privileged executive counsel of an agency. Play your political cards right and you might even get appointed interim secretary. Never mind those sexually harassed employees you leave in your wake.

Which now brings us back to Courtney Phillips, a Port Sulphur native who previously worked as Deputy Secretary of LDH, then known as the Department of Health and Hospitals (DHH), in the Bobby Jindal administration. She left that position in February 2015 to become CEO of the Nebraska Department of Health and Human Services.

On Feb. 13, 2015, LouisianaVoice posted a story dealing with her employment at DHH during which time her mother was hired as a DHH employee, raising questions of NEPOTISM.

She left Lincoln in August 2018 for Austin to become Executive Commissioner of the Texas Health and Human Services Agency but not before leaving a path of destruction and low morale in her old agency.

On March 6, 2018, BRAD GIANAKOS, chief counsel for the Nebraska Department of Health and Human Services, by all accounts a professional who cared deeply about his work, was summoned to the office of the agency’s chief operating officer where he was summarily fired and escorted out of the building.

He wasn’t the only one. Others met similar fate with no explanation other than the agency wanted to move “in a different direction.”

But when Gianakos interviewed for other state jobs, he found the doors closed. He concluded that he was being blackballed even though there never any allegations of wrongdoing or criticisms of the job he had done for two decades at HHS.

A month later, he was dead. Suicide.

And four months later Phillips moved on, leaving behind an agency missing many longtime managers and administrators who also left but for different reasons: a harsh working environment.

And now, less than four years after leaving Louisiana in the broad daylight and less than two years after departing Lincoln, she may again be on the move—this time back to Louisiana where she will rejoin Russo.

It’s enough to make you scratch your head in bewilderment.

 

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Sometimes it seems the mindset of infallibility of prosecutors is such that they not only cannot admit their own errors, but sometimes even those of their predecessors.

Leon Cannizzaro wasn’t even the Orleans Parish district attorney when 17-year-old Jerome Morgan was convicted in the 1993 shooting death of 16-year-old in a Gentilly motel ballroom.

The DA at the time would have been Harry Connick, Sr., whose office was so notorious at hiding exculpatory evidence from defendants that national publications like THE NEW YORK TIMES, CURRENT AFFAIRS, and THE WASHINGTON POST ripped his office’s practices.

Connick’s reputation was enhanced—if that is the right word—by a model ELECTRIC CHAIR that occupied the desk of one of Connick’s prosecutors. Photographs of five African American men that Connick’s office had sent to death row at the Louisiana State Prison at Angola were “seated” in the photo. The center photo was of one John Thompson who had been sent to death row for a murder he didn’t commit and in fact, was nowhere near the scene of the murder when it occurred.

Thompson sat on death row for 14 years before the Innocence Project of New Orleans discovered exculpatory evidence Connick’s office had withheld and freed him in 2003. An assistant DA, it turned out, had hidden 10 pieces of exculpatory evidence, including test results and a pair of pants in order to protect the DA’s case against Thompson. The pants contained blood worn by one of the victims in the crime, blood believed to be that of the perpetrator. The blood type was B. Thompson’s was O.

He sued Connick and won a $14 million judgment—a million dollars for every year he was held in solitary confinement—but with Clarence Thomas writing the majority opinion, a split U.S. Supreme Court took Thompson’s reward away and he ended up with nothing for his 14 years awaiting his execution.

Thompson, who spent 14 years on death row for a crime he didn’t commit and was denied a $14 million judgment for his wrongful conviction, died of a heart attack in 2017 at age 55—14 years after his exoneration.

Fully a quarter of Connick’s convictions during his 30 years as Orleans Parish DA were overturned, each time because of exculpatory evidence that was withheld from defense attorneys.

But Connick’s screw-ups didn’t stop Cannizzaro from attempting to go forward with re-trying Morgan after New Orleans Judge Darryl Derbigny vacated his conviction in 2014 after two witnesses who later recanted their trial testimony, saying that police had steered them to identify Morgan as the shooter when Clarence Henry was killed at a birthday party at the hotel.

In fact, Cannizzaro promptly moved to re-try Morgan and to charge the two witnesses, Hakim Shabazz and Kevin Johnson, with perjury while quietly forgoing any attempt to go after the police officers who the two said coerced their original testimony.

Their attorney even said as much. “If the DA is eager to prosecute for perjury,” said attorney Robert Hjortsberg, “then justice would dictate that he begin with prosecuting the corrupt NOPD officers who coerced false statements out of scared teenagers so they could close this case quickly rather than accurately. There is no justice for a victim’s family when the police don’t arrest the actual perpetrator. And the police department will never correct these lazy, corrupt practices unless the DA begins to hold the department accountable and truly treats all the people of this city fairly.”

Cannizzaro, while refusing to proclaim Morgan innocent of the killing, nevertheless in 2014 dropped the murder charge after a Louisiana Supreme Court ruling said prosecutors could not use transcripts from Morgan’s 1994 trial during a new trial.

That meant that for the first time in 20 years, Morgan was a free man and that should have ended his problems, but like the plot from a Stephen King novel, more horrors lay ahead for him as he encountered something called the BAIL BOND INDUSTRY.

“I am the victim not only of prosecutors who violated the law, but also of our money bail system and the predatory bail bond industry,” Morgan wrote in a letter to the letter of the New Orleans Advocate last year.

When Cannizzaro, in his dogged pursuit of Morgan, decided to re-try him, his bond was set at $25,000—this for a man whose conviction had just been set aside by a judge—and he spent an additional 18 days in jail while his family raised the bail money.

When, after 14 months, Cannizzaro finally relented and dropped all charges, Morgan assumed—wrongly, it turned out—that the bail bond company would return his bail money.

He said he learned that the Louisiana Commissioner of Insurance had investigated the bail bond company that he had paid and found that it had overcharged him for his bail bond. But it was not just him, he said. “The commissioner found that dozens of bail bond companies have overcharged as many as 50,000 New Orleans families by an estimated $6 million,” he said. “That is a lot of people and a lot of money!”

He said he was angry at learning that he’d been overcharged but was confident that he and others would receive compensation.

“I figured the bail bond industry would not be happy about having to return the money. But I did not expect that the Legislature would introduce a bill — SB 108 — that would prohibit the insurance commissioner from ordering this money to be returned and another bill — HB 171 — whose purpose is to protect the bail bond industry’s profits.”

Morgan was referencing SB 108, which passed the Senate by a vote of 36-1 (Sen. Dan Claitor casting the lone nay vote) with two absences (with one of the bills authors, Jean-Paul Morrell, being among the two absentees), and sailing through the House by a vote of 85-0 with 20 absences (sponsor Raymond Garofalo was among the absentees).

So, what, exactly was SB 108, which was signed into law by Gov. John Bel Edwards as Act 54 of 2019?

Well, basically it says that the rates for underwriters writing criminal bail bonds throughout the state “shall not be subject to the rates set by the insurance commissioner, but shall be set and adjusted by the legislature.”

But then there’s this in Section B of the bill:

“In any parish having a population of more than three hundred thousand and fewer than four hundred thousand persons …no repayment of overcollections as determined by the commissioner shall be required nor shall such actions be considered a violation…”

Well, guess how many parishes just happen to have a population of between 300,000 and 400,000?

And just how did the bail bond industry manage to slide that bill through the legislature so easily?

The same way all controversial legislation seems to get passed: Political contributions or, for a lack of a better term: payoffs. A check of campaign finance records shows pages and pages and pages of political contributions by bail bondsmen. And you just know those contributions were made in the interest of good government.

Contributions were made not only to legislators but to sheriffs as well—25 that we found since 2011. Others were to judges. What political groups have the most clout in the legislature? Sheriff and judges. So when the New Orleans bail bondsmen need favorable legislation to protect their practice of gouging low-income defendants who lacked the expertise or the financial resources to fight back, who do you call on? Your friendly legislators, sheriffs and judges.

“It took 20 years for me to be exonerated,” Morgan said. “But it took only about a month for a bill to exonerate the bail bond industry that cheated my family and my community out of millions of hard-earned dollars.”

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A politically-conservative organization is set to launch its campaign to rethink the issue of capital punishment next week in Baton Rouge but a press release on Tuesday indicates the group is more concerned with the cost of capital punishment in terms of dollars than in the human cost of lives adversely affected by numerous documented cases of wrongful convictions.

Louisiana Conservatives Concerned About the Death Penalty, “a network of conservatives who question the alignment of capital punishment with their conservative principles,” will hold a news conference to officially announce the group’s formation next Wednesday at 11 a.m. at Capitol Park Event Center’s Fishbowl Conference Room at 702 River Road North in Baton Rouge.

Speakers scheduled for the event include:

  • King Alexander of Lake Charles, a member of the Louisiana Republican State Central Committee;
  • David Marcantel of Jennings, member of the Louisiana Republican State Central Committee;
  • Robert Maness of Madisonville, member of the St. Tammany Republican Parish Executive Committee and unsuccessful candidate for a number of elected offices;
  • Marcus Maldonado of New Orleans, described as a “liberty activist;”
  • Hannah Cox, national manager, Conservatives Concerned About the Death Penalty.

Louisiana is one of 12 state-based CCADP groups the press release says are “part of a nationwide trend of conservatives rethinking capital punishment.”

“The latest study shows the death penalty costs Louisiana taxpayers nearly $16 million a year more than life without parole, and this waste of money is a big reason why conservatives in Louisiana are speaking out against the death penalty,” Cox said. “For a state with one of the highest violent crime rates, Louisiana is flushing away enormous resources that could be used to make its people much safer.”

What the news release did not say was that no fewer than 60 Louisiana inmates have been exonerated after it was determined that they were wrongly convicted, according to the National Registry of Exonerations which lists more than 2500 exonerations nationwide.

Of those 60 Louisiana exonerations, 15 were on death row awaiting execution.

One of the principal reasons for the high number of wrongful convictions is that prosecutors are not held accountable in a country where virtually all but judges and prosecutors must answer for their actions.

District attorneys want a high rate of convictions to hold up to the public when re-election time comes around and if they have to fudge with the evidence in order to obtain a conviction, many prosecutors have no compunctions about doing so.

And why not? It’s practically impossible to successfully sue a district attorney for his actions and judges are absolutely immune.

A good example of how difficult it is to extract some measure of retribution from a DA can be found in the case of John Thompson of New Orleans. Convicted of a murder he did not commit because the DA withheld exculpatory evidence, he spent 14 years on death row before the Innocence Project of New Orleans obtained his freedom. He sued DA Harry Connick and won a $14 million judgment that was appealed all the way up to the U.S. Supreme Court which struck down the award. For 14 years of his life taken away by subterfuge on the part of the prosecutor, he got nothing.

Thompson died in 2017 at the age of 55, just 14 years after his 2003 exoneration. Fourteen years on death row followed by 14 years of freedom during which time the courts deprived him of any remuneration for the “inconvenience” of 14 years behind bars and now…he’s dead.

But sometimes the actions of a prosecutor can be so egregious that the protections against legal liability must be stripped away to allow the exoneree to seek recompense for the damages done to him and his family.

Apparently, U.S. District Judge Shelly Dick felt that 21st JDC District Attorney Scott Perrilloux may have committed such a breach of protocol and ethics in a Livingston Parish murder conviction when she ruled that a lawsuit by Michael Wearry could go forward.

Dick, chief judge for the U.S. Middle District, ruled that Perrilloux’s “alleged use of intimidation and coercion to produced fabricated testimony went beyond the scope of the prosecutor’s role as an advocate of the state” by costing Wearry more than 20 years of his life on death row.

In light of Judge Dick’s ruling and a ruling by the U.S. Supreme Court that called the entire case “a house of cards,” Perrilloux’s claim of prosecutorial immunity came up pretty thin.

The Wearry case stems from the brutal murder of 16-year-old pizza delivery boy Eric Walber whose body was found on a gravel road not long after he delivered pizza to a remote area in Livingston Parish in 1998.

The lawsuit was filed against Perrilloux and Marion Kearney Foster, former Livingston Parish Chief of Detectives who, together, built their case against Wearry on the basis of the testimony of then 10-year-old Jeffrey Ashton who has since recanted his testimony, claiming he was threatened by Perrilloux and Foster and that Perrilloux coached him on his trial testimony..

He now says he was nowhere near the crime scene and that he never saw Wearry,” said Ashton, now 30. “I seen none of that. On the night that everything happened, I was not in Springfield, period. We was at the Strawberry Festival (in Ponchatoula).”

Ashton says Perrilloux and Foster threatened to take him to juvenile hall if he didn’t say what they wanted him to say in his testimony and that “you’re going to be there for life.”

The case languished for two years before a jailhouse snitch told authorities he participated in the murder and named Wearry and four others. The problem with Sam Scott’s story, however, was that he got several details about the crime wrong.

He said the murder occurred on Blahut Road but police reports show that it actually happened several miles from there, on Crisp Road.

The jury wasn’t told, for example, that Scott gave five statements over two days, getting both the color and make of the car wrong. In his initial statement, he said that Walber was shot but he was not. He was kidnapped in his own vehicle and then beaten before being run over several times.

Moreover, Wearry’s then-girlfriend, Renarda Dominick, said she and Wearry were at a Baton Rouge wedding reception until well beyond the time of the murder but prosecutors, never eager to admit wrongdoing, claim he could have participated in the murder after returning from the reception.

Like Ashton, Dominick said authorities went so far as to arrest her for traffic tickets she had already paid in an effort to get her to change her story.

Undaunted by the double-team scolding from Judge Dick and the U.S. Supreme Court for his office’s sloppy work, Perrilloux immediately began planning to re-try Wearry. But Wearry’s lawsuit forced an abrupt change of plans. With the lawsuit hanging over him like the sword of Damocles, Perrilloux quickly agreed to a plea deal with Wearry in December 2018, just a month before his scheduled retrial for first-degree murder. Wearry entered a guilty plea to a lesser charge of manslaughter and agreed to a 25-year sentence with credit given for more than 20 years already served.

Whether or not Wearry was involved, this was the best deal for him. Even if he was innocent, it was his only chance of not having to endure another grueling trial at the hands of a prosecutor who had already shown his propensity to win at any cost, even if it meant bending the rules to the breaking point. And another conviction would mean Wearry would never get out of prison.

And again, whether or not Wearry was involved, the actions by Perrilloux and Johnson are inexcusable. These people are elected to protect us, not to resort to unethical behavior to obtain a dubious conviction in order to bolster their resumes at election time.

With most public officials, we ask only for honesty and integrity. With prosecutors and judges, the bar must be set higher because they deal with human lives and the consequences can be catastrophic. With them, we must also demand absolute adherence to the highest standards of justice. No one is perfect, but perfection must be the objective.

Every time.

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Regular readers of this site know of my often expressed frustration with the lack of transparency of our elected officials, particularly after Bobby Jindal so shamelessly gutted the enforcement powers of the Louisiana Board of Ethics back in 2008, just days after taking office—a move, by the way, that conveniently accommodated a couple of his supporters in the legislature who were experiencing ethics problems that suddenly went away with Jindal’s “reforms.”

Regulars also are familiar with my general angst regarding the judges of the 4th Judicial District (Ouachita and Morehouse parishes) and judges in the 2nd Circuit Court of Appeal in particular.

Financial statements of elected officials—except judges—is relatively easily accessible on the Board of Ethics web page for those willing to do a minimal amount of digging. That’s how I learned of the questionable motives of one LEGISLATOR for voting in favor of a contract for a company whose stock he had only recently purchased and subsequently made a killing from.

As noted above, judges have somehow managed to hold themselves exempt from disclosure of any possible conflicts via their financial dealings—conflicts that can, and do, create an aura of distrust in our system of justice. (Financial disclosure reports are not to be confused with campaign finance reports, which even judges are required to disclose.)

So, I was more than a little thrilled today when I saw in my email inbox a press release from the Metropolitan Crime Commission in New Orleans.

The MCC, to fill void of accountability and transparency, has taken it upon itself to make financial disclosure statements available on nearly 300 judges, from district court levels all the way up to the Louisiana Supreme Court.

Rather than write my own summary, I have opted to re-print the MCC press release in its entirety:

Today, the Metropolitan Crime Commission (MCC) launched a new search engine on our website that enables the public to access the financial disclosure statements of all 289 Louisiana District Court Judges, Appellate Court Judges, and Supreme Court Justices for the past five years.

The MCC’s Louisiana judicial financial disclosure statement search engine is accessible here: https://metrocrime.org/judicial-financial-disclosure-statements/

Financial disclosures are required of all Louisiana elected officials and contain information regarding income, property and business ownership, non-profit affiliations, and major financial transactions.

Prior to today, there was no online access to financial disclosures filed by Louisiana judges. Rather, the only way to access judicial financial disclosures was by filing a public records request with the Louisiana Supreme Court’s Judicial Administrator.

“The Louisiana Supreme Court’s fails to recognize that judges are just as accountable to the public as any other elected official,” said MCC President Rafael Goyeneche. “The cumbersome process that the Supreme Court has devised for the public to obtain judicial financial disclosures needlessly restricts citizens’ access to these records and undermines public confidence in the judiciary. Going forward, judicial financial disclosures will be accessible to the public in the same manner as all other Louisiana elected officials.”

The Louisiana Board of Ethics provides online access to all financial disclosures required of elected officials and public servants serving on boards and commissions, with the exception of the judiciary. Providing these records online brings financial transparency of the judicial branch of government in line with that of the legislative and executive branches.

Campaign finance reports for all elected officials, including judges, are already publicly available on the Louisiana Board of Ethics website via the following link:
http://ethics.la.gov/EthicsViewReports.aspx?Reports=CampaignFinance

The MCC obtained these records by making a public records request to the Supreme Court’s Judicial Administrator and asking for financial disclosures of state judges from the past five years. The Judicial Administrator promptly furnished these digital records, and the MCC found all judges had appropriately submitted the financial disclosures according to requirements of Supreme Court rules. The MCC notified the Louisiana Supreme Court that we are launching the judicial financial disclosure search engine in a letter accessible through the following link:
https://metrocrime.org/wp-content/uploads/2020/01/1.10.20-MCC-Letter-to-LASC.pdf

“By not making these records readily available as other elected officials, the Supreme Court does a disservice to the Appellate and District Court judges who are doing a good job,” Goyeneche stated. “Openly sharing judicial financial disclosures should provide confidence to the public that their cases are being considered without conflicts of interest.”

…To which LouisianaVoice can only add: Amen!

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