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BOYER v. LOUISIANA
- 2010-2019
In 2002, Jonathan Edward Boyer and his brother Anthony walked along a roadway in Sulphur, Louisiana. When Bradlee Marsh gave the brothers a ride, Boyer demanded money from Marsh. Marsh refused, and Boyer shot him in the head three times and took his money and a silver chain. Marsh died from his injuries.
Boyer was indicted in Louisiana state court on second-degree murder and armed robbery with a firearm charges. The jury found Boyer guilty on both counts. Boyer filed a motion for a new trial, but was denied. He was sentenced to life in prison without parole for the second-degree murder charge, and 104 years without parole for the armed robbery charge. On appeal, Boyer argued that that the trial court erred in determining his mental competency, by sustaining the State's objection to Boyer's attempt to present testimony showing his brother - Anthony - had violent tendencies, and by giving Jonathan Boyer an excessively long sentence. The court of appeals affirmed the convictions, holding that the trial court did not abuse its discretion and did not prejudice Boyer.
Should a state's failure to fund counsel for an indigent defendant for five years be weighed against the state for speedy trial purposes?
Is a defendant's due process right to present a complete defense, to compulsory process, and to confront the witnesses against him violated when relevant and reliable expert testimony as to the psychology of interrogations and false confessions is excluded at trial?
Legal provision: N/A
Unanswered. In a per curiam opinion, the Court dismissed the writ of certiorari as improvidently granted.
Chief Justice John G. Roberts: We will hear argument next this morning in Case 11-9953, Boyer v. Louisiana.
Mr. Bourke?
Richard Bourke: Mr. Chief Justice, and may it please the Court:
The Louisiana Court of Appeal in this case correctly found that the majority of the delay, the 7-year delay was caused by the lack of funding, but when moving to assess that cause under Barker, incorrectly determined that it was a cause beyond the control of the State, and adopting its earlier ruling under the State statute found that it was a cause beyond the control of the State in the sense that it was beyond the control of the local district attorney's office.
Justice Antonin Scalia: Mr. Bourke, was it within the control of your client?
Richard Bourke: He was unable to fund himself, Your Honor, that is why he asked for the appointment of counsel.
Justice Antonin Scalia: Was he unable to get his Sixth Amendment right to a speedy trial?
Richard Bourke: Yes.
Justice Antonin Scalia: Why?
Richard Bourke: That is -- he was unable to move forward to trial because he was not provided with counsel adequately funded to advance the--
Justice Antonin Scalia: He had -- he had one counsel, right?
During the whole time?
Richard Bourke: --In fact in a sense, Your Honor, he had two counsel.
Justice Antonin Scalia: For part of it he had two, and then there was not enough funding for the second, okay?
So he was faced with a choice.
Louisiana, as I understand it, has adopted a provision which the Sixth Amendment does not require.
The Sixth Amendment just requires counsel, but Louisiana says, In capital cases we are going to provide two counsel, and you can't go to trial until you have two counsel, okay?
Richard Bourke: No, Your Honor--
Justice Antonin Scalia: No?
Richard Bourke: --that is not correct.
That is not the State of Louisiana law.
Justice Antonin Scalia: What is the State of Louisiana law?
Richard Bourke: Louisiana absolutely does not provide a right to two counsel in capital cases.
The Louisiana Supreme Court in Rule 31 provided that the court should appoint two counsel, but also it provided expressly that that created no procedural or substantive right.
Similarly there is no right--
Justice Antonin Scalia: I don't -- I don't understand that.
That's not Louisiana law that you -- that you can't proceed without two counsel?
That's not the law in Louisiana?
I thought that's--
Richard Bourke: --That is not the law in Louisiana.
Justice Antonin Scalia: --I -- you don't consider supreme court rules to be law?
Richard Bourke: It is a supreme court rule which directs the trial judge to appoint two counsel.
However, it makes it clear--
Justice Antonin Scalia: Is it the fact that in Louisiana you cannot proceed to trial in a capital case unless there are two counsel?
Richard Bourke: --No, Your Honor, that is not the--
Justice Antonin Scalia: Then you don't have a case.
You should have proceeded to trial.
Richard Bourke: --No, Your Honor.
In -- in this case, as the court of appeal correctly found, Mr. Boyer did not have adequate funding for the case to go to trial.
The court of appeal did not predicate that on the need for two counsel.
The motion to determine source of funds was not predicated on Rule 31.
Justice Ruth Bader Ginsburg: The one counsel who was qualified, what was his name?
Richard Bourke: Mr. Lorenzi was lead certified counsel.
Justice Ruth Bader Ginsburg: Lorenzi, yes.
He was only one at the time who was qualified to be lead counsel?
Richard Bourke: Correct.
Justice Ruth Bader Ginsburg: And the Louisiana Supreme Court said, You don't have to do this.
You're his -- you're his attorney, but you have a right to be paid, and the State has to pay you.
So there was no obligation on counsel's part to do anything; and he kept asking, Please have a funding order, let me be paid and I'll do my job.
Richard Bourke: Mr. Lorenzi declined to pay for Mr. Boyer's defense out of his own pocket.
Justice Antonin Scalia: Wasn't there at all times one counsel who was being paid by the State?
Richard Bourke: There was--
Justice Antonin Scalia: At all times?
Richard Bourke: --There was at all times one counsel appointed as associate counsel, that is for the purpose of assisting Mr. Lorenzi as lead counsel.
Justice Antonin Scalia: Was that counsel qualified enough under our constitutional Sixth Amendment jurisprudence?
Richard Bourke: Well, I don't understand the -- the Sixth Amendment jurisprudence to place--
Justice Antonin Scalia: Well--
Richard Bourke: --a qualification minimum, so I'm not sure I'm understanding your question.
Justice Antonin Scalia: --Well, the question is, would only lead counsel under -- under the supreme court's rule qualify as competent counsel for purposes of complying with the constitutional requirement?
Or would this certified second chair qualify?
Richard Bourke: The -- there is no -- I'm having trouble answering the question, Justice Scalia, because the two things don't talk to each other.
The Sixth Amendment doesn't impose a certification requirement.
Justice Antonin Scalia: Exactly.
I'm just saying, can you establish that the one counsel that your client had throughout this whole -- whole proceeding would not satisfy the constitutional requirement?
Can you -- is there any basis for your saying that?
Richard Bourke: Yes, Your Honor.
Justice Antonin Scalia: What?
Richard Bourke: The court of appeal twice found -- knowing that associate counsel had been appointed, the court of appeal twice found that the case could not proceed due to a lack of adequate funding and the State--
Justice Antonin Scalia: Not because of a Federal constitutional reason; the court found you are not complying with the supreme court rule.
You can't proceed without complying with the supreme court rule.
It seems to me your client was faced with a choice.
You could either demand what Louisiana in its generosity has given to capital defendants, namely the right to two counsel, whether it's by statute or by supreme court rule, it doesn't matter.
You can either demand that right, or you could demand your right to a speedy trial.
That was your choice.
And it seems to me what counsel chose was to insist all along, I want my right to two -- to two counsel.
You didn't have to--
Justice Elena Kagan: Mr. Bourke, did anyone--
Justice Antonin Scalia: --you didn't have to take that right.
You could have gone to the supreme court and said, you know, Since it's taking so long, I demand my constitutional right to a speedy trial.
But you didn't do that.
Richard Bourke: --Your Honor, if Mr. Boyer had been brought into court and had been told, We've got associate counsel here; they are qualified in the sense that they are Barred in Louisiana; and they can take your case to trial and move it forward now.
But if you wait, we might have funding for another lawyer here who will join him, is more senior in experience, that will double your firepower.
You can choose, Mr. Boyer, do you want to go ahead now with this guy, or do you want to wait?
In that circumstance there would not be an invidious choice between the right to counsel and the right to speedy trial.
It would be, We are giving you constitutionally adequate counsel, and you can wait for better if you wish to.
But that is not what occurred here.
And, Justice Scalia, the--
Justice Anthony Kennedy: Can you tell me why that is not what occurred here?
Richard Bourke: --Because the funding problem did not exist solely around Mr. Lorenzi's overhead and expenditure.
There was no money for investigation, there was no money for experts.
And the associate counsel who had been appointed had been appointed solely and for the limited purpose as an assistant to Mr. Lorenzi, not to conduct the case in his own right.
If this issue had been raised in the trial court, this would have been clearly explained into this record.
It wasn't.
But the trial court and the appellate court -- the court of appeal, Third Circuit in Louisiana, knew and understood that there was no investigative funding, there was no expert funding, there had been an assistant.
This isn't the case where there was a lawyer appointed and they were waiting for the second lawyer.
It's a case where they'd found an assistant and were waiting for the first lawyer.
Chief Justice John G. Roberts: How much money would be needed for investigation and experts before you would acknowledge that that would be competent representation?
Richard Bourke: That is a very case-specific determination, Your Honor, and in Louisiana at that time rested with a judicial determination that the investigative or expert expenses were reasonably necessary to ensure a fair trial within the meaning of the Due Process Clause.
So it was a funding level tagged to the constitutional minimum of due process.
Justice Antonin Scalia: Of course, a finding by the district court, or whichever court found it, that there was not enough money to pay counsel, to investigate, and to do whatever else -- buy stamps -- is not a finding by the district court that there was not enough money to investigate and to buy stamps.
Counsel was a part of that mix.
You never had a finding that there was not enough money to pay counsel, right?
Or -- I'm sorry, that there was not enough money to allow the counsel that has been appointed to investigate and buy stamps.
Was there ever any such finding?
Richard Bourke: There was never--
Justice Antonin Scalia: The -- the big tag item was paying counsel, wasn't it?
Richard Bourke: --No, Your Honor, that was one of the big tag items.
But in a capital case, the investigation of both the guilt phase and the full mitigation and life investigation, along with the use of potential expert witnesses, particularly in the case where there were all the indications of mental health problems and the like, are often equal to or in some cases greater than the cost of counsel.
And so no, the big tag item wasn't just Mr. Lorenzi's overhead and expenses.
The big tag item was providing adequate funding.
And to return to your earlier point, Justice Scalia, just to -- to make it clear, the Louisiana Supreme Court cases which mandate that a case cannot go forward without counsel do not reference Rule 31 at all, or two counsel.
They are cases which stand for the proposition that the case cannot go forward without constitutionally adequate counsel, counsel who can provide reasonably effective assistance.
This case began in 2002.
At that point, the controlling Louisiana decision on not moving forward without effective assistance was Peart, P-e-a-r-t, which we cite in our brief, which said that the court will not allow a case to proceed without reasonably effective counsel.
During the life of this case -- sorry.
Justice Stephen G. Breyer: Your point of view in this case--
Richard Bourke: Yes, sir.
Justice Stephen G. Breyer: --In your point of view, would it satisfy you if we say the Louisiana court of appeal found the largest part of the delay involved the funding crisis experienced by the State of Louisiana -- that meant giving you adequate money for counsel.
Then they said, the progression of the prosecution was out of the State's control as determined by this court, which I think referred to that funding crisis.
And we could -- and your view would be that's what they said.
We don't know the underlying facts, but that's what they said.
And insofar as they said that the State wasn't responsible for that part of the delay that they are talking about, they're wrong, because the State is responsible for not providing enough money, even if there's a problem and to say they weren't responsible is wrong, okay?
That's what you want us to say?
Richard Bourke: Yes, Your Honor.
Justice Stephen G. Breyer: Period, and send it back.
Richard Bourke: Well, Your Honor--
Justice Ruth Bader Ginsburg: You would like us to say what Judge Cook said in her opinion, that responsibility for funding rests with the State, not with the defendant.
Once an attorney is appointed, it is the State's obligation to ensure that adequate funds are available for the defense.
And I take " for the defense " to mean not simply counsel, but the witnesses, the investigation.
It is certainly true that none of the delay due to the lack of funds was in any way attributable to the defense.
That's essentially what you would like us to say?
Richard Bourke: --That is what Judge Cook said.
Justice Antonin Scalia: I don't think it's enough that none of the delay was attributable to the defense.
The defense has to complain, has to demand its right to a prompt trial.
What did your client do?
Frankly, I am skeptical that a capital defendant who has already confessed to the crime wants to be tried as soon as possible.
I'm skeptical about that.
Now, what -- what did your client do to demand his right to a prompt trial?
Richard Bourke: Your Honor, what Mr. Boyer did was act at all times in full compliance with the procedural mechanisms set up in Louisiana for doing that.
At arraignment -- he had already identified he was indigent and asked for counsel.
At arraignment, he requested a jury trial.
His lawyer was appointed, and his lawyer immediately identified the funding problem, and said: We need money or we can't go forward.
Louisiana statute bars counsel from filing a motion for speedy trial without an affidavit saying you're ready to go forward.
Louisiana has said in article 7--
Justice Antonin Scalia: Well, that's -- surely that's unconstitutional.
Did counsel say, I demand a speedy trial?
You can't condition my right to a speedy trial upon my getting some affidavit or something.
Richard Bourke: --It's a procedural rule, Your Honor.
Justice Antonin Scalia: I'm still waiting for anybody telling the court: I demand a speedy trial, and if I don't get a speedy trial, you are violating the Constitution and I ought to go scot-free.
Richard Bourke: Well, Your Honor, the rule I am referring to is a procedural rule.
It does not in any way limit the relief from a speedy trial, but you can't move for a speedy trial.
You can move to quash because you have been denied one, but you can't move for one.
It's exactly what this Court referred to in--
Justice Samuel Alito: Isn't it true that you waited 3 years before doing that?
Richard Bourke: --That was the first point at which under Louisiana procedure he had a remedy available, exactly as Judge Cook stated in her abstaining opinion.
That was when he could move to quash.
He could not move for a speedy trial in a valid motion for speedy trial without having an affidavit saying, we are ready to go.
Louisiana has passed that rule to stop pro forma requests for speedy trial.
Justice Ruth Bader Ginsburg: Can we clarify one point?
Justice Scalia said something about a defendant facing the death penalty going scot-free.
There was an armed robbery charge that was added in 2007.
Do you dispute that a new clock started in 2007, the first time that the robbery charge was made?
Richard Bourke: We do, Your Honor.
That armed robbery charge is a lesser included offense of the first-degree murder count.
Mr. Boyer was originally indicted on first-degree murder, which in Louisiana is intentional killing during the course of an armed robbery.
There are other varieties, of course.
But intentional killing during an armed robbery.
And those are the elements of first-degree murder.
The State unpacked those two elements, or two lesser included offenses, to second-degree murder, which is intentional killing, and armed robbery.
And the State in fact conceded that had the charge remained a first-degree murder charge then the armed robbery charge would have created a double jeopardy problem, and that's at page 3703 to '4 of the record, where counsel for the State indicated that the armed robbery charge could be added because the primary charge, the first-degree murder, had been dropped to second-degree murder, and specifically said,
"Mr. Bourke is correct that had we filed for first-degree murder, there may be double jeopardy problems. "
But because they had unpacked that charge from murder and armed robbery down to murder and also armed robbery, there was no double jeopardy problem.
Justice Anthony Kennedy: What about -- what about the basic problem in this case as I understand the question presented, is, should the State be responsible when the funding problem is at a local level?
So suppose you have a State that says, you know, we have had problems in funding; if we give this to the county, it's going to be much better, and the counties are very, very good at raising money and knowing who the counsel are.
So it's all handled by the county.
Then one county has a disaster, a hurricane in that county particularly.
Is that not a reason for delaying, or does the State have to immediately step in and supplement the funding?
Can't the county say, oh, we need another 2 years?
Richard Bourke: Justice Kennedy--
Justice Anthony Kennedy: I take it that's the issue that we're trying to decide here.
Richard Bourke: --Well, I think it starts with the proposition that it is the State, not the prosecutor who has the responsibility to ensure a speedy trial in accordance with due process.
And then the State can make all sorts of different arrangements and the States around this country make different arrangements, but it's their responsibility to make sure that they work.
And if they don't work, then the State is going to have to make reasonable accommodation for that to meet its responsibility.
And so by assisting the cause of delay against the State, but within the Barker weighing framework, the Court's dealing with speedy trial claims would be able to deal with short-term unexpected exigencies, they would be able to weigh the reasonableness of the response.
A valid reason for delay will justify that delay, as this Court said in Barker, but here--
Justice Stephen G. Breyer: The answer to the question, that's what I was trying to do -- this case, the briefing is filled with whether he asked in time, whether he was delaying, whether he should have done some other thing, whether he should have -- but the question that's asked is simply whether the failure to fund counsel is a factor that should be weighed against the State.
Richard Bourke: --Yes.
Justice Stephen G. Breyer: And maybe it only gets very little weight, because maybe there was a hurricane, and maybe it doesn't even matter because he didn't make the right motions.
But the lower court said it shouldn't be weighed against the State, period.
And do we have to do anything other than say, If you're right, yes, it should.
Now, how much weight it gets, well, that depends.
There was a hurricane and -- but -- but it's something that they can't just ignore in -- in the hearing.
They have to figure out what happened and to the extent the State should have done more, it weighs against the State.
Do you want any more than that?
Richard Bourke: Yes, Your Honor.
Justice Stephen G. Breyer: And what else--
Richard Bourke: The first thing that we want is exactly that, Your Honor, that the court below incorrectly -- incorrectly failed to attribute this to the State.
And this Court -- I accept this Court could stop there and remand to the Third Circuit to deal with that in accordance with--
Justice Antonin Scalia: Not quite.
I mean, the question presented is not as general as that.
It's much more fact-bound.
It says whether a State's failure to fund counsel for an indigent for 5 years, particularly where failure was the direct result of the prosecution's choice to seek the death penalty should be weighed against the State for speedy trial purposes.
I think this is inviting us to look into the facts of this case and decide whether this 5-year delay, particularly since the prosecution chose the death penalty -- you know, I don't like having to do that and -- but it seems to me that's what the question presented at least requires.
Richard Bourke: --Well, Your Honor, it -- I think it would be open to this Court to answer the question by saying the court got it wrong at the first step by failing to attribute it to the State and then remand for full consideration of weighing in light of that.
What we have asked in our briefing for the Court to do is to also provide some guidance on the weight that should be given to delay resulting from the lack of funding, because in this case--
Justice Samuel Alito: If we provide -- if we provide that guidance, what do we do about the continuances that Mr. Lorenzi requested that relate to the funding?
January 10, 2003, Lorenzi requests a continuance of funding hearing citing scheduling problems.
August 5, 2003, Lorenzi moves to continue hearing on motion to designate source of funds so that the Indigent Defender Board can consider funding Boyer's case at an August 26 meeting.
So this is -- okay.
Lorenzi moves to continue September 12, 2003.
Lorenzi moves to continue hearing on motion to designate funds in trial so that the IDB may again consider the funding defense at its next meeting.
December 15, Lorenzi moves to continue hearing on motion to designate funds, et cetera.
There are many of these motions.
What do we do with those?
Richard Bourke: --Your Honor, I'd suggest that this Court does exactly the same thing that the Louisiana Court of Appeal did with them, which was to find that it was the lack of funding, not any action by Mr. Lorenzi, which caused the delay.
The Louisiana Court of Appeal declined to adopt the State's argument that it was Mr. Lorenzi's fault.
And the reason it did that was because the lack of a funding hearing caused no delay at all in the conduct of this trial.
The funding hearing when conducted produced no funding, no ruling or order and had no influence on the date of the trial.
And, of course, the right at issue was the right to go to trial, not to -- the time of the pretrial hearings.
Furthermore, all of those continuances which were joined in by the State were related to trying to identify and find funding for this case and for this man.
None of them were for a dilatory purpose.
They were because a new procedure was in -- occupies to submit bills in a different way to the IDB, because the Louisiana Supreme Court had accepted the citizen -- and ultimately--
Chief Justice John G. Roberts: I mean, Justice Alito's problem seemed to me, to get back to Justice Scalia's point, is that he seemed more interested in the funding than a speedy trial.
The funding that would be provided by the State under its procedures.
Richard Bourke: --In the absence of funding, there was no trial to be had.
At the funding hearing -- or I'm sorry -- at the motion to quash hearing in November 2006, there was a colloquy between the trial court and the prosecutor in which the trial court said, What are we going to do with this case?
They can't have a defense without money.
This was not, absolutely not--
Chief Justice John G. Roberts: And as Justice Alito pointed out on several occasions, what the defense lawyer said was, Let's put it off and see if we can get funding, let's put it off until there's the funding hearing.
Let's put it off and put it off as opposed to saying, I want a speedy trial, I'm entitled to it now, if you don't have the money, I don't get a speedy trial, I get off scot-free.
Richard Bourke: --Well, under Louisiana's Article 701, there was no filing a motion for speedy trial, saying, Please give me a speedy trial, set a date now.
And at the same time--
Justice Antonin Scalia: The Constitution requires such a motion.
I mean, I don't care whether they have a, you know, a speedy trial motion.
If denying him the right to speedy trial violates the Constitution, surely he is entitled to bring that to the attention of the Louisiana court, whether there's a specific statutory or rule provision or not.
Richard Bourke: --Your Honor, this Court in Barker, when dealing with this very topic under the issue of assertion, specifically said it would allow judges to take account of assertion in accordance with local procedural requirements.
The local procedural requirement in a State that already has its own statutory prescriptive period, if you don't bring second-degree murder to trial within two years, you're out.
The -- Louisiana does not need a defendant to tell them that they have to bring a speedy trial, and they don't want a defendant doing it unless they're ready to go to trial themselves.
They don't want the sort of pro forma assertion that was rejected.
Justice Antonin Scalia: Now, they -- they don't even want counsel to say, you know, Your Honor, we've been trying to get funding, and we're just sick and tired of waiting for this.
We demand a speedy trial, and if we don't get funding and therefore don't get a speedy trial, we think there's a constitutional violation and we're going to ask that the indictment be dismissed.
Nobody ever made a statement like that to the Court, did they?
Richard Bourke: In July of 2005--
Justice Antonin Scalia: What did you say?
Richard Bourke: --In July of 2005, Mr. Lorenzi moved to quash the indictment and said exactly that.
Said it's too late, no funding, no trial, speedy trial is up.
And it was still another 2 years before the funding crisis was solved.
So there was a very lengthy period if such notice were required, and that is not, in our submission, the message from Barker and the message from Article 701, they got that notice in July 2005, when there was the motion to quash.
And returning to your question--
Justice Ruth Bader Ginsburg: But wasn't there something about that motion was withdrawn, the 2005 motion was withdrawn in 2006?
Richard Bourke: --If I can clarify that, Justice Ginsburg, Mr. Lorenzi was at pains to say he was not withdrawing the motion, but dismissing the motion to quash because he couldn't advance it in a successful way in Louisiana without demonstrating prejudice.
Justice Antonin Scalia: Dismissing it instead of withdrawing it, that's the fine line he's drawing?
Richard Bourke: He specifically--
Justice Antonin Scalia: Is that a line in Louisiana law?
I don't know.
Does this -- this come from French law or something?
It seems to me withdrawing and dismissing sound to me the same thing.
Richard Bourke: --Well, the point, Your Honor, was that he was not withdrawing his claim to a speedy trial, but rather, dismissing his motion to quash on the violation of that at--
Justice Antonin Scalia: Withdrawing his motion to quash.
So it was withdrawn, right?
Richard Bourke: --No, it was dismissed.
He chose dismiss rather than withdraw is the word and what he intended by that was that he wasn't saying, I don't want one; he was saying, I can't bring the type of hearing Louisiana courts require to get my Six Amendment motion to quash granted.
Justice Sonia Sotomayor: I -- I think what you -- let's go back to that.
It was his view that under Louisiana law to assert his Sixth Amendment right, he had to follow the procedure laid out in the Louisiana rule?
Richard Bourke: To move for a speedy trial, he had to do exactly that.
Justice Sonia Sotomayor: Under the Sixth Amendment, he had to comply with the requirements, the procedural requirements of Louisiana.
Richard Bourke: The local procedural requirements for how one goes about doing that.
Justice Sonia Sotomayor: All right.
So then how do you -- if he couldn't do it in 2002, '03, '04 or '05, how did he end up doing it in '05?
Richard Bourke: It's the difference between moving for a speedy trial, Please give me a trial date, I want to go to trial next week, and moving to quash because the speedy trial right has been violated.
Justice Sonia Sotomayor: So why didn't he move to quash earlier?
Richard Bourke: He moved to quash at the first moment that it became available under the State statute, which was at the 3-year mark.
He moved 1 month after that 3-year mark as soon as it became available.
Justice Sonia Sotomayor: I'm sorry.
Is there a law or a regulation in -- in Louisiana that gives it a 3-year mark?
Richard Bourke: Yes, Your Honor.
Article 579 and following provides that the State must bring a first-degree murder charge to trial within 3 years or the case is proscribed, the indictment must be dismissed with prejudice.
And so the State always knew it had that deadline.
It didn't even set a trial date for a period of over 3 years in the middle of this, didn't even try to set a trial date for 3-1/2 years, didn't bring Mr. Boyer into court for 3-1/2 years to address his case at all.
And so as soon as the remedy available became open, as Judge Cook said in her opinion, defense counsel filed using exactly the remedy provided for.
If there are no further questions, Your Honor, I will reserve the remainder of my time.
Chief Justice John G. Roberts: Thank you, counsel.
Ms. Sigler.
Carla S. Sigler: Mr. Chief Justice, and may it please the Court:
This Court should affirm the holding of the Third Circuit Court of Appeals for three separate reasons.
Justice Sonia Sotomayor: How about the reasoning, is delay because of the lack of funding attributable to the State or not, or to the district attorney as agent of the State?
Carla S. Sigler: Justice Sotomayor, I don't believe that the funding -- that we can credibly argue that funding is completely outside the role of the State.
Justice Sonia Sotomayor: So what's wrong with what's been suggested by some, to remand to tell the court below to whatever extent this was the basis of your decision, it was wrong.
Now redo the Barker, the factors.
Carla S. Sigler: Well, Your Honor, if you review the Third Circuit Court of Appeals opinion, which is at Appendix D, the other Barker factors are analyzed incredibly thoroughly with a mind to this Court's jurisprudence, and the rationale may be flawed with regard to that one point in this Court's opinion, but the result is not.
Justice Sonia Sotomayor: So is one factor determinative always in this calculation?
I thought it was a weighing factor, and so if it's a weighing factor, why isn't that in and of itself a factor that a court needs to weigh against the others?
Carla S. Sigler: I think that this Court has always acknowledged in its Barker v. Wingo jurisprudence that there is no one talismanic factor; all of the factors are interrelated and all are reviewed.
And that is why, even if the Court disagrees with that one assessment of the Third Circuit's opinion, the result is sound.
Justice Elena Kagan: But how do we know that?
How do we know that they would have reach the same determination if they had gotten it right on that single factor?
Carla S. Sigler: --I think when you look at the Third Circuit of Appeals opinion, they specifically and with direct quotations to Barker v. Wingo, go through every other factor in the analysis, and they discuss the fact of the repeated continuances of defense counsel of his own funding motion as part of the assertion of the right.
Justice Sonia Sotomayor: But wait a minute.
This is a--
Justice Elena Kagan: Whether something is--
Justice Sonia Sotomayor: --I'm sorry.
Justice Elena Kagan: --Whether something is the State's fault is a significant factor in the analysis, and we have made that very clear in our cases, and so if they got that wrong -- and you, I think quite rightly, are saying we can't defend that part of it -- if they got that wrong don't we at least have to say, okay, well, get it right now and do it again?
Carla S. Sigler: Well, Justice Kagan, I don't think that what I would say is they got it completely wrong, because, as this Court has acknowledged throughout its Barker jurisprudence, there are different weights you attribute to government action, whether it is negligence or whether it is a deliberate attempt on behalf of the State to evade giving a defendant his Sixth Amendment right to counsel.
Justice Anthony Kennedy: I would like to get the structure of your argument.
You began to say there's three reasons.
I would just like to hear those three reasons so that I can understand the framework for all these questions.
Carla S. Sigler: Yes, sir, Justice Kennedy.
Justice Anthony Kennedy: The three reasons that we should affirm.
Carla S. Sigler: The first reason is that, as in Vermont v. Brillon, the delay occasioned in this case was due to Petitioner's counsel's repeated requests to continue his own funding motion, which delayed a source of funding when the Petitioner wished to proceed with capital-certified counsel.
Justice Anthony Kennedy: Okay, and the second?
Carla S. Sigler: The second reason, Your Honor, would be, pursuant to Loud Hawk, even if this Court determines that there was a negligence factor with regard to the State of Louisiana in not properly funding capital-certified counsel, there are valid policy interests at play here; and the fact that Louisiana is generous enough to provide specially certified counsel to capital indigent defendants when there is no constitutional requirement for it to do so.
And then our third argument, Your Honor, would be that, based under the Barker v. Wingo jurisprudence, the delay should not be attributed to the State in this case because of Petitioner's failure to meaningfully assert his right to a speedy trial.
Justice Anthony Kennedy: Okay.
Thank you.
Carla S. Sigler: --Yes, sir.
Justice Ruth Bader Ginsburg: How -- on that, how could it possibly be Lorenzi's fault, which is what you said is your first point, when he said: Pay me.
Supreme Court of Louisiana, you have said that my operation as counsel for this indigent defendant doesn't become operative till I get paid.
I have a right to get paid.
All that counsel did was to say again and again: Pay me; get the funds to pay me.
I don't understand how in the world it could be the fault of an attorney who has not gotten one cent from the State, has a right to be paid before he engages in representation -- how can it be his fault?
Carla S. Sigler: Well, Justice Ginsburg, there are several reasons why it's Mr. Lorenzi's fault, the first of which is he filed a motion under State v. Wigley and that is Appendix X of your Joint Appendix.
In that motion he identified State v. Wigley and, although he referenced wanting expert resources as well, he primarily based that motion on his entitlement to attorney's fees.
Justice Antonin Scalia: I was going to ask you that question.
Opposing counsel said that it -- it wasn't primarily attorney's fees that's at issue here but investigation costs.
That makes a difference to me because if it's just attorney's fees he could have gone ahead with one attorney as far as I'm concerned.
Carla S. Sigler: I agree with you, Justice Scalia.
And if you look at Appendix LL, which is the hearing on the motion to quash, Mr. Lorenzi says point blank in that appendix, he says: I was not going to file substantive motions until I was funded.
Justice Sonia Sotomayor: Doesn't he say at the same time, I couldn't do the investigation to make the motion required by the State?
So didn't that implicate the funding for investigation?
Carla S. Sigler: Well, Justice Sotomayor, if you look at Appendix LL where Mr. Lorenzi is speaking, he says
"I have done substantial investigation on my own. "
Mr. Lorenzi had the assistance at that time of the LCAC with Ms. Christine Lehmann assisting him as associate counsel.
Justice Sonia Sotomayor: Were there funds for investigation?
Carla S. Sigler: There were funds available in 2003 that Mr. Lorenzi did not avail himself of because he continued his funding motion eight times.
Justice Sonia Sotomayor: Which funds?
Which funds?
Carla S. Sigler: There was a capital defense account that was held by the Calcasieu Parish Public Defender's Office.
Mr. Lorenzi identified that account as a source of funding in record volume 1, pages 193 to 194.
He says in a letter to Judge David Painter, then the presiding trial judge, that he has identified a source of funds for his representation.
In that same letter he moves to continue a funding hearing that was at that time scheduled for the next month.
Justice Sonia Sotomayor: Wait a minute.
I was told -- maybe I am sort of misreading this record -- that he was ultimately told that fund wouldn't be made available.
Carla S. Sigler: That is not correct, Your Honor.
If you read Appendix LL, Chief Public Defender Wonwer testifies that that fund had been used to pay other capital counsel in Calcasieu Parish.
It had been used extensively.
Now, by the time we get to the funding hearing, which was delayed because of Mr. Lorenzi, we are in 2006.
At that time there is a backlog in expenses that they are paying other capital counsel, because they pay their bills on a first come, first served basis.
Had Mr. Lorenzi proceeded to hearing in 2003, there was an identified account that would have paid him.
He did not submit any bills to the public defender's office to be paid.
Chief Justice John G. Roberts: What about--
Justice Elena Kagan: Ms. Sigler, on appeal you said this, the -- the State said: Because the defendant was without properly funded counsel for so long, the State simply could not ethically or legally bring him to trial.
So what did you mean when you said that, that the State could not ethically or legally bring him to trial?
Carla S. Sigler: Justice Kagan, what that statement meant was that we were aware of the fact that the Petitioner was at all times urging his privilege under Rule 31 to capital-certified counsel.
We did not want to be involved in the business of questioning a Petitioner's right to counsel.
We did not feel that ethically we could do so under the Rules of Professional Conduct.
For us to interfere with that right would have been inappropriate in our view.
Justice Elena Kagan: Well, did you ever say to Mr. Boyer, you know, you can go ahead right now with this single counsel that you have?
Was that ever a choice put to him?
Or because -- the way I read all of your assertions below, and indeed the entire record below, is that everybody simply assumed that the case could not go forward in its present circumstances.
Carla S. Sigler: Justice Kagan, I think that that assumption was made in part out of a desire to recognize Mr. Boyer's decision to try to pursue Rule 31 privileges.
It's certainly -- I understand that we could have--
Justice Elena Kagan: Well, a decision implies a choice.
Was a choice ever put to him?
Carla S. Sigler: --He had a choice that was implicit, Your Honor, under Louisiana law; and he knew that and his counsel certainly knew that.
Justice Elena Kagan: Well, you didn't even know that.
You said the State could not ethically or legally bring him to trial.
How was he supposed to know that?
Carla S. Sigler: Justice Kagan, our response in that particular phrase that you are speaking of has to do with our response to how the Petitioner has phrased this issue all along.
The Petitioner has continuously phrased this issue as if he had a right to capital-certified counsel, and in fact in his reply brief that is what he states.
Justice Antonin Scalia: I thought -- I thought the statement meant could not ethically or legally bring him to trial while he is insisting on his right to two counsel.
Carla S. Sigler: That's correct, Justice Scalia.
Justice Antonin Scalia: It would have been different if he had said, The devil with the second counsel, I want a -- I want a prompt trial.
Carla S. Sigler: That's correct.
Justice Antonin Scalia: Then you would have felt that legally and ethically, you could proceed.
Carla S. Sigler: Yes, sir.
Yes, Your Honor.
Chief Justice John G. Roberts: --What about your friend's argument that he couldn't ask for a speedy trial without an affidavit saying he was ready to go to trial?
Carla S. Sigler: It's interesting that petitioner argued that here today, because under Article 71 of the Code of Criminal Procedure, while an affidavit is listed in the statute as one requirement, as a matter of course, motions for speedy trial are granted pro se all the time that meet none of the requirements in that statute.
In addition, Rule 31 does not say that a defendant who is trying to avail himself of Rule 31 can't file a motion for a speedy trial.
It says nothing to that effect.
Justice Ruth Bader Ginsburg: Mr. Boyer was -- had a limited education and a low IQ.
Did anyone ever counsel him about this, No, you don't have to have two lawyers, you can have one?
Did any judge ever tell him what his rights were?
Carla S. Sigler: Well, Justice Ginsburg, I would first like to address that I do not believe the petitioner has a low IQ.
In fact, that was refuted by our Dr. Charles Robertson at a competency proceeding.
In fact, the result that was given from an IQ test was 15, the person administering it specifically stated that he was malingering, which would cause a 10-point drop in the IQ--
Justice Ruth Bader Ginsburg: What was the level of his education?
Carla S. Sigler: --I believe his level of education was eighth grade.
But I would--
Justice Ruth Bader Ginsburg: And he was expected to know all this about two counsel -- you have a right to two counsel but if the State isn't going to pay them, you can go forward with one counsel.
Did anyone ever tell this man with an eighth grade education what his rights were?
Carla S. Sigler: --Justice Ginsburg, I don't believe that that specific discussion was ever had--
Justice Antonin Scalia: His one counsel might have known.
He did have one counsel.
He had one counsel, because he only graduated from the eighth grade.
That's why we provide counsel.
And that counsel could have known, no?
Carla S. Sigler: --Absolutely.
In fact, Mr. Lorenzi was well aware of the fact that he could have chosen, the petitioner could have chosen, to proceed with just one counsel.
But I'd also like to note, Justice Scalia, that from 2002 to 2004, he had three counsel.
He had Mr. Lorenzi, he had Mr. Steven Singer and he had Miss Christine Lehman.
He didn't just have one, he had three.
Justice Ruth Bader Ginsburg: And he was not in -- you said that all times, he had at least two.
It seemed to me -- two paid counsel.
Lorenzi wasn't paid, so it was Singer--
Carla S. Sigler: Yes, ma'am.
Justice Ruth Bader Ginsburg: --and then the woman, Lehman, is it?
But when she started representing him, she didn't have the qualifications to be counsel.
Carla S. Sigler: Well, Justice Ginsburg, as has been alluded to before, I believe by Justice Scalia, she absolutely had the qualifications to serve as counsel as required by the Sixth Amendment.
Justice Ruth Bader Ginsburg: But she wouldn't -- she couldn't be appointed counsel in a death case under Louisiana's rules.
Carla S. Sigler: --She met the qualifications for associate counsel.
In fact, she was later certified in a motion filed by Mr. Lorenzi to be associate counsel--
Justice Ruth Bader Ginsburg: But from the very beginning, she wasn't even qualified to do that.
Carla S. Sigler: --Well, there was a provision -- there is a provision in Louisiana law that allows someone to move for the admission and the certification of somebody as capital counsel, which was the procedure employed in this case.
That is perfectly permissible.
But Miss Lehman at that time was a very experienced attorney, and we lay out her qualifications in the brief.
So while she may not have been perfectly qualified under Rule 31 to serve as lead counsel, she was certainly more than qualified--
Justice Antonin Scalia: She was a graduate of Yale law school, wasn't she?
Carla S. Sigler: --She's a very impressive attorney.
Justice Antonin Scalia: And another of his counsel, Mr. Singer -- of the three that he had -- he was a graduate of Harvard law school, wasn't he?
Carla S. Sigler: Yes, Your Honor.
Justice Antonin Scalia: Son of a gun.
Justice Clarence Thomas: Well -- he did not [sotto voce] provide adequate counsel.
Carla S. Sigler: I would refute that, Justice Thomas.
Justice Sonia Sotomayor: Counsel, do you want to define constitutionally adequate counsel?
Is it anybody who's graduated from Harvard and Yale?
Or even just passed the Bar?
Carla S. Sigler: Or LSU law.
Justice Sonia Sotomayor: I would think -- no, no, no.
This is a very serious question, which is, I don't know that we have ever defined what the minimum qualification is for qualified counsel.
But it is -- some of it has to be that counsel themselves feel adequate to represent a capital defendant.
Carla S. Sigler: Well--
Justice Sonia Sotomayor: I know plenty of lawyers who would never either volunteer or would resist being appointed to take on that kind of case, because it has many differences to a normal case.
Carla S. Sigler: --I would agree with that, Justice Sotomayor, but I would invite you to look at the motion that moved for the certification of Ms. Lehman, which is in the record.
That motion--
Justice Sonia Sotomayor: She's a very experienced trial counsel.
There's no -- no doubt of that, but was she a capital counsel?
Carla S. Sigler: --She was, Your Honor.
That motion specifically refers to the seven capital cases she had worked on, and states that while at the LCAC, the Louisiana Capital Assistance Center, she had worked on other capital cases in advisory positions.
So she--
Justice Samuel Alito: Let me -- let me give you a holding -- this is an incredibly factually complicated case.
We don't usually take cases that are so fact-bound, but we've taken it.
Let me give you a rule that we might adopt: If the failure to provide funding makes it impossible for some period of time for a case to be tried, then the delay is attributable to the State.
Would you agree with that?
Carla S. Sigler: --If the failure to provide funding is a deliberate attempt on the State to interfere with the Sixth Amendment right to counsel, then I would agree with that.
Justice Stephen G. Breyer: You also agree, probably on this subject, but the only sentence that I can find -- I haven't read it totally carefully -- but in the lower court opinion that has to do with this is the sentence that I read before, and it says:
"The first 3 years he was incarcerated, he was charged with first-degree murder, and the progression of the prosecution was out of the State's control, as determined by this Court and the Supreme Court. "
Now, when I look at those words, I am not 100 percent certain what they mean, so it would be helpful -- but I don't want -- you're not going to do it -- but I'd like to -- are you -- would you concede that that statement means they're saying that the State, for speedy trial purposes, is not to be held accountable really at all for not providing the money insofar as that's a cause of the delay?
Is that a conceded point, or is that something I have to spend quite a lot of time going through?
And if you don't concede that, what is it that you concede, which would spare a little time going through this record?
Carla S. Sigler: Justice Breyer, I regret to inform you that I do not concede that point.
I believe that if you look at the--
Justice Stephen G. Breyer: All right.
I thought maybe you would not, but--
Carla S. Sigler: I believe if you look at Appendix D, as I stated earlier, the other Barker factors are discussed, and the continuance motions that were filed by defense counsel are mentioned with regard to the assertion of the right, but not necessarily mentioned with regard to the State.
Justice Stephen G. Breyer: Yes, you are right.
Most of this opinion, and almost all of it, is about the other factors.
Now, I agree with you, that's what it looked like.
But we do have this sentence, so how am I supposed to figure out whether that sentence really means what they say, or just is something they threw in to make the opinion more difficult for us to understand?
Carla S. Sigler: I don't think that was the stated -- the intention of the Third Circuit.
Justice Stephen G. Breyer: Neither do I.
I don't doubt it.
But what's the argument -- sounds as if it has something to do with funding.
So what's the argument it doesn't?
Carla S. Sigler: Well, I believe--
Justice Stephen G. Breyer: It says, you see --
"as determined by this Court and the Supreme Court. "
What were they talking about?
Carla S. Sigler: --Well, I believe what the Third Circuit was referring to was this Court's Barker v. Wingo jurisprudence.
This Court has stated repeatedly that even if something--
Justice Stephen G. Breyer: Oh, okay.
Well, then that's it.
They're referring to Barker.
So when they say it's out of this State's control as referred to in Barker, which is our case, then what they mean is that it's not something that the State had anything to do with, so they shouldn't be blamed for it.
Carla S. Sigler: --I think that they are attempting in some fashion to reconcile some of this Court's later statements in the Barker jurisprudence, which this Court made it clear in Vermont v. Brillon that certain actions are not going to be attributed to the State for speedy trial purposes--
Justice Stephen G. Breyer: When you agreed with--
Justice Elena Kagan: Ms. Sigler, could you go back to Justice Alito's question?
Carla S. Sigler: --I'm sorry.
Justice Elena Kagan: That was a big segue.
Do you have it--
Chief Justice John G. Roberts: Justice Alito has a question pending.
Justice Samuel Alito: You agreed with the -- the principle that I mentioned, except that you want to draw a distinction between the failure to provide funding and the deliberate failure to provide funding?
Is that a real difference?
Carla S. Sigler: Absolutely.
Justice Samuel Alito: That the State inadvertently failed to provide funding?
Carla S. Sigler: I think that this Court has always recognized in the Barker jurisprudence that negligence is a very different factor in how it weighs against a State than a deliberate attempt to violate a constitutional right to a speedy trial.
Justice Elena Kagan: --When we said in Brillon, delays resulting from a systemic breakdown in the public defender system could be charged to the State.
So that suggests systemic breakdown doesn't necessarily mean deliberate.
It just means there has been a breakdown, and the result is that the person can't get to trial.
And I think -- if Justice Alito could even read that again, and if you think about it in light of this statement in Brillon, the systemic breakdowns are systemic breakdowns, whether or not they are deliberate.
Carla S. Sigler: Well, Justice Kagan, I think that the best evidence or the fact that there was no systemic breakdown is the funding hearing itself, Appendix JJ.
At that funding hearing there are extensive discussions about other capital cases within the State that are being tried the entire time this case was pending, including one case that we referred to, State v. Reeves in Calcasieu Parish, a capital case that went to trial in less than 4 years, that included a retrial.
Justice Samuel Alito: Well, what if you have a case where the defendant wants counsel, can't afford counsel, and the State says: We'd love to provide counsel for you, but we're broke; we just don't have any money to provide counsel; but maybe in a year we'll have money to provide counsel.
Now, what do we do with the delay between that point and -- and the -- the point a year later when the money becomes available?
Carla S. Sigler: Well, I think from that scenario, we would have to look at the State's intention.
I certainly think that if the State flat out said, I'm sorry, you're not getting counsel for a year, then we would have to attribute that factor to the State more heavily, even though it does appear that in your scenario it's more of a negligence problem than a deliberate we're not going to fund you problem.
Justice Stephen G. Breyer: --Suppose it is negligent.
For a year, this person isn't represented because the State keeps sending the checks to his cousin of the same name.
I mean, you know, they didn't do it purposely.
He just happens to have a cousin, this lawyer, of the same name who doesn't tell him he's getting these checks out of nowhere.
So he can't hire the expert.
Absolute negligence.
I mean, that's not to be attributed to the State?
Carla S. Sigler: No, Justice Breyer.
Justice Stephen G. Breyer: Is there any authority for that?
I mean, you know, maybe you'd discount it because it wasn't deliberate, but no attribution whatsoever?
Carla S. Sigler: --Well, you discount it, Justice Breyer, and you attribute it to more of a negligence standard than you would a -- an absolute failure or refusal to provide counsel.
And this Court has done that repeatedly.
Justice Sonia Sotomayor: I'm sorry.
What's the difference between saying I'm broke and I want to pay the prosecutor, because they kept paying the prosecutor, I want to pay for the prosecutor's investigation, but I won't pay you?
What -- what is the difference in applying the negligence versus deliberate standard?
I mean, look, in the end, States are always strapped, but I don't know a State who doesn't make some income.
They make a choice about where they want that income to go.
And it may be in your judgment a more legitimate decision, but why is the situation less negligent -- why is it negligent and not deliberate?
Why is the choice one, not the other.
Carla S. Sigler: Justice Sotomayor, I believe in this Court's decisions under Barker v. Wingo the choice aspect, the deliberate intent aspect, has been looked at by the courts in deciding how much of the blame is to be assessed against the State.
Justice Sonia Sotomayor: Well, then answer the question.
Why isn't the choice to say, I'm broke, so I don't want to pay you, I'm going to pay the prosecutor, which happens -- the prosecutors were being paid throughout.
They had enough money to investigate, but we're choosing not to pay the defendants.
Why isn't that a deliberate choice?
Carla S. Sigler: Well, Justice Sotomayor, that choice was not made in this case.
There was available funds.
What we're here -- we're today--
Justice Sonia Sotomayor: Available funds to pay the lawyer?
Carla S. Sigler: --There were available funds in 2003.
I was referring to that letter in the record that--
Justice Ruth Bader Ginsburg: The court itself said repeatedly that the cause of the delay was the funding crisis.
The court said.
I think we have to accept that as being the case, that the funding crisis -- the effort to get this lawyer paid failed time and again.
And it was the court's determination that it is the funding crisis that caused the delay.
Carla S. Sigler: --Well, Justice Ginsburg, the funding crisis that the court ruled on was present in 2006.
It was not present in 2003, when this case started.
Mr. Lorenzi himself identified a source of funds to pay him.
And when we hear Chief Public Defender Ron Ware testify at that motion for funding hearing at Appendix JJ, he says: Yes, I have a special capital defense account; and yes, I have been paying capital attorneys from this account throughout this time period.
The fact that there weren't funds available readily in 2006 is directly attribute to Petitioner's counsel's failing to move his funding herein forward in 2003, when he first identified that source of funds.
This is not a case in which there was never any funding.
This was a case in which defense counsel, for whatever reason, delayed a resolution of the funding issue, an issue that he himself identified as one, without any resolution he was not going to go forward with substantive motions.
The onus, the blame or more of the blame in this case on the funding problem belongs with the Petitioner, not the State of Louisiana, whether we mean the prosecution--
Justice Sonia Sotomayor: I'm not going to argue the funding issue because I've got to go look at the record again.
But let's assume that the record doesn't support your claim, because as I read the decisions below and the record that I saw there wasn't funding available until I think it was 2006 or '07?
And so somehow, there's a disconnect between what you're saying and the record.
But let's assume that -- my hypothetical, that there wasn't money despite whatever you're saying.
What's your position then?
Then it's not deliberate?
It's still negligence?
Carla S. Sigler: --Justice Sotomayor, I maintain that position, and I believe it to be consistent with this Court's repeated analysis under Barker v. Wingo jurisprudence.
You do look at the intent of the State as either a negligence factor, akin to more of a neutral factor, a deliberate factor, or a valid reason for the delay.
And I would also suggest to Your Honor--
Justice Sonia Sotomayor: So there could never be a systematic breakdown in your judgment, because any time the State gives resources to something else, it's not deliberate -- it's not a systemic breakdown.
Carla S. Sigler: --Justice Sotomayor, I would invite you to look at the motion for funding hearing again.
There was money allocated to indigent defense by Louisiana.
It has increased, and this is public record and it's partially supported by the funding hearing.
That money has increased from 9.4 million in 2006 to 20 million in 2 -- I'm sorry -- in 2005 to 20 million in 2006 to $33 million today.
House Bill 1 of the State legislative web site.
That is the precise amount prosecutors are awarded by the State.
I would, again, suggest that this is not a case of systemic breakdown.
And I think that as a policy matter, this Court should be reluctant to rule against the State of Louisiana, which as Justice Scalia noted, has been so generous in trying to provide capital indigent defendants with specially qualified counsel, which is more counsel than they're even entitled to under the Sixth Amendment.
And I would also urge this Court to be cognizant of its own repeated statements in the past that this is a very severe remedy with regard to letting a convicted murderer free.
I'd also like to address before I sit down and turn this back over to Mr. Bourke, Justice Ginsburg, earlier you had addressed the question of whether or not the armed robbery was in fact still a valid charge.
Contrary to Mr. Bourke's assertion before Your Honor today, if you look at Appendix 254A, there is a writ of opposition that was filed by the Petitioner before the Louisiana Supreme Court, and at 254A he says, and I quote:
"Even if the murder indictment were quashed, Mr. Boyer faces the armed robbery prosecution. "
The Third Circuit also rejected Mr. Bourke's current double jeopardy argument and stated specifically that there was no speedy trial problem with regard to the armed robbery.
Thank you.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Bourke, you have about 3 minutes remaining.
Richard Bourke: Thank you.
And I have a few points of clarification that I want to make just in a very quick fashion.
Justice Sotomayor, there was no funding in 2001, 2002, 2003.
It was never there.
If Your Honor looks at the Louisiana Supreme Court opinion in Citizen, it will describe the Turner case funding hearing in 2001.
Mr. Lorenzi was stuck with that one as well.
There was no money.
Mr. Lorenzi did indeed submit bills in 2003, because a new procedure had been announced, and that's at page -- Joint Appendix page 401 to '3.
You'll see the correspondence showing he did submit bills and there was no money.
Justice Sonia Sotomayor: There was money allocated, but if I understood the record correctly -- by the State -- the funding was grossly inadequate to cover all the needs?
Richard Bourke: Right.
It was underwater.
It was oversubscribed.
Justice Antonin Scalia: Mr. Bourke, would you respond to the last point made by -- by opposing counsel?
Richard Bourke: --Yes, certainly.
Justice Antonin Scalia: You did state, it's in Appendix J, even if the murder indictment were quashed, Mr. Boyer faces the armed robbery prosecution.
Richard Bourke: Yes, Your Honor.
Justice Antonin Scalia: You told us today that that's not the case, that the armed robbery prosecution goes down the drain.
Which is true?
Richard Bourke: The passage you're referring to is from a writ application purely limited to the application of the State speedy trial statute, which does accord a new clock to every new filing.
So under Louisiana State statutory law, the armed robbery started the State statutory clock again, but that is not the case for the Sixth Amendment.
Justice Sonia Sotomayor: As to the murder or as to the independent robbery count?
It's not a lesser included offense, the robbery count.
Richard Bourke: The armed robbery was a lesser included of first-degree murder, but it is not a lesser included of second-degree murder.
Our double jeopardy argument was the same force was applied in both, the force for the murder and the force for the armed robbery.
So that's completely irrelevant.
But that was a State statutory argument about the armed robbery charge which has no application in the case in front of us.
Justice Elena Kagan: Mr. Boyer -- why would--
Chief Justice John G. Roberts: Go ahead.
Justice Elena Kagan: --Why would we get to that question?
I mean, no courts below have dealt with it.
It has been briefed to us in a grand total of two paragraphs, I think.
There would be no reason for us to get to that question.
Richard Bourke: It is well beyond the question presented, Your Honor, I agree.
Your Honor, the--
Justice Elena Kagan: So -- so from that point of view, we can assume that there is a robbery conviction that is still out there.
Richard Bourke: --He has a murder and armed robbery conviction from the same incident.
It's the same charge as the first-degree murder, it's just unpacked.
Justice Antonin Scalia: Or assume there isn't, right?
Richard Bourke: That -- that is why this Court would remand to allow the -- the local court to deal with it, and ensure that that's accurate.
Justice Breyer, the reference to our earlier -- the decision of this Court and the supreme court is a reference to the earlier decision on the interlocutory writ application, the earlier decision that a lack of adequate funds prevented the prosecution.
And if Your Honor looks at Joint Appendix at page 126, which is part of the opinion of the Third Circuit, you will see earlier in their opinion they discuss their own earlier ruling on the supreme court--
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Chief Justice John G. Roberts: In case 11-9953, Boyer versus Louisiana, the petition for a writ of certiorari is dismissed as improvidently granted.
Justice Alito has filed a concurring opinion in which Justices Scalia and Thomas have joined.
Justice Sotomayor has filed the dissenting opinion in which Justices Ginsburg, Breyer, and Kagan have joined.


text:
Gear Review
Tobin Story
Works ok, but could be better
- Gender: Male
- Familiarity: I've used it several times
I bought this mainly to use as a face covering for skiing, and it works pretty well for mild weather. The main problem I have with it in this capacity is that it stretches out and loses its shape fairly quickly, and then it won't stay on my face. The other issue is that in really cold weather, the moisture in the wool freezes solid, at which point it's useless as a facemask. So, bottom line, this buff is good when the weather is mild, but doesn't quite do the trick when it gets really cold. I'll probably still use it for the many other uses, but I'm looking elsewhere for a cold-weather facemask.
Ryan Hampton
Tobin, I'm surprised you have gotten it cold enough to freeze. I wore it as a windscreen for a Winter Mt. Washington ascent in -40F and it worked great. I have noted the tendency for it to lose shape after a while. I get around this by doubling the fabric up...Onward and upward.
View More Details on Buff Wool Buff - Solid

subset: commoncrawl


text:
What Does Medicare Cost?
This is supplemental health insurance provided by private insurance companies that covers some of the costs Medicare doesn't, including copays and deductibles. You don't need, nor can you buy, a Medicare Advantage Plan if you carry a Medigap policy.
To join a private Medigap plan, you pay a monthly fee to an insurance company in addition to the premium you pay to the government for Medicare Part B.
The costs of Medigap plans vary a lot, depending on the coverage, the company, your location, and your age. So make sure to shop around before buying one.
Programs vary from state to state. Be sure to find out what your state offers. You can get help from your State Health Insurance Assistance Program. Call 800-MEDICARE to find yours.


text:
There's just something about Rock of Love…
…you know?
Wait, what season is this again?
Thanks, Bret!
Indeed, in this third go-round for Bret, we'll watch him literally going 'round…the country, that is, as he tours with his solo band and a group of girls competing amongst themselves to be his one and only. Or whatever.
After a montage of the reality thorns in Bret's rose, he explains to us, "Only one woman can truly be my rock of love…three." Ah, honesty.
He meets his potential rocks/thorns at a bar in Louisville, KY. Never having visited the Slugger capital of the country, I can still say with confidence that this seems utterly appropriate.
We get early words from some of the girls. Brittanya reports…
"I'm everything I think a guy would want, actually. I'm different, I'm cool, I'm fun. I'm a little bit not too smart, but it's OK!" "A little bit not too smart?" How wonderful to find a girl who believes in both telling and showing.
Gia (on the right) is into bondage, while Mindy (on the left) wonders aloud, "What the blonde bimbo hell have I walked into?" It's called VH1, babe. Welcome!
The girls are lined up to receive the man who may give them his heart, but before that, will certainly slip them the tongue.
Said man tells us he's looking for more than a groupie — he wants someone to come home to, a lover, a friend, a music-enthusiast (rather, a Bret Michaels-enthusiast), a sympathizer. If it doesn't work out this time, he's giving up. And he'll just be celibate for the rest of his life. That's that.
Bret comes in, horns ablaze…
He asks the girls, "Are we ready to rock each other's worlds?" They are, indeed ready: ready to jump into a shallow germ pool. Bret gravely tells them that this is a real tour and so they need to be on time all the time. He then lines them up and tells them that he loves photography. But more than that, he loves formula and this is the time in the season when all of the girls will get their pictures taken by him. They need laminates, so this is his excuse to snap their photos. Because, clearly, he needs an excuse.
A girl who we'll come to find is named Constandina, practices while in line…
How wonderfully Showgirls of her.
First up is Brittaney, who immediately starts posing like this:
Bret loves that she "plays the innocence with the sexiness." He adds, "That is more sexy than anything." More sexy than sexiness, even. Bret soon "realizes" that he's seen Brittaney before, and a lot of her. He's familiar with her work in porn. A Heatheresque Southern firecracker named Farrah wonders, "Who the French would want to f*** that?" Already bringing the lingo, Farrah jumps out as one to watch, for sure. Anyway, to prove that she's past her porn days and more into music-making now, Brittaney sings Bret a song. You can imagine how amusing this is to her competitors.
Melissa teaches things like pilates and pole-dancing. Hopefully, she offers accelerated classes, in case she feels like making some side-money from her astute competitors. Or is that ass-tute? Thank, you thank you. I'll be here all season. (As long as Viacom doesn't introduce a new round of layoffs, that is!)
Nikki is introduced by John as "Nikki…Tribe…something."
Something, indeed. Nikki informs us that she got her implants to deter her from scaling buildings that continuing a career in graffiti, which landed her in jail, would have required. I guess cutting her own hands off would have been too difficult. Anyway, Nikki Tribe Something has her own song for Bret. She couldn't bother to memorize it, but that works out for everyone. For you see, everyone can find amusement in the fact that she reads it off of STD fact sheets…
She seems completely unaware of this. But then, she seems completely unaware, period. Maybe she just has this information lying around like it's nothing? What place is there for shame on Rock of Love, anyway? Nikki Tribe Something's rap, by the way, includes the lines, "I can't believe I'm here telling you this / I know what you're looking for, not a fake-ass bitch…" She's cut off like pee in gonorrhea-stricken urethra.
Ashely, says Bret, is "beautiful in a Juliette Lewis kind of way." He adds that she is "Natural Born Killers with bigger breasts," but, as we'll come to find, the same level of sadistic tendencies.
Megan trains wild animals.
Her skills will undoubtedly come in handy as she show progresses.
The bindi-sporting girl above, Constandina, informs us that she is from the foothills of the Appalachian Mountains. She's spiritual and deep. Additionally, she has a master's degree in storytelling, which totally sounds like euphemistic way to describe a chronic bulls***ter. That's not what she means, though.
Natasha attended boarding school and is aiming to start a brothel. Funny how one thing leads to another.
See how Marci's eyes are closed in her shot?
Her lips are, too, and it's not for the camera. She barely says two words as Bret asks her introductory questions. Marci, it would seem, is not here to make lovers!
Stephanie enjoys chicken.
This is literally the most interesting bit of information we find out about her all show.
Kelsey's from Utah and she uses her looks to get what she wants.
What an innovator!
Maria is a 40-year-old retired model.
Bret describes her as runway-tall, but this is Rock of Love: "model" could mean any number of things.
Marcia is from Brazil and, as we'll come to find out…
…boy, is she!
Mindy is competitive and enjoys proving people wrong.
She will undoubtedly fit right in.
Farrah is, as previously hinted at, fairly amazing.
When it's Brittanya's turn, Bret examines her tattoos.
He is impressed. "This is awesome…I mean, I hate to use the word 'awesome' a lot, but it is." Aw, self-awareness rears its bandanna-clad head. And I love the implication that the many other times Bret's used the word "awesome," have been overstatements, but this time, it's precisely the word. How can you be sure, Bret?
Beverly has seen Bret in concert but she's never hung out with him backstage. When he asks her why, she explains that it's because he was Ambre. Bret's response?
"Oh, damn it!" Damn it, indeed. Damn that whole relationship to reality hell.
Samantha comes off like a 12-year-old who's been working as a Vegas cocktail waitress for 30 years.
She is quite the contradiction.
Taya blurts out that she is a Penthouse Pet, so Bret encourages her to show some skin. She doesn't want to be the first naked girl. Uh, Taya, you won't be. That distinction goes to Heather and unless your nipples are working out a synchronized guitar solo, you're not gonna top her horns-over-nips brilliance. Perhaps knowing this, she merely shows Bret her butt.
It's pretty amazing, like 2 Live Crew-round. Picture-perfect, even.
And then there is Gia, who probably never in her life has been afraid to be the first naked girl.
She was born naked, in fact.
Bret dismisses the girls, telling them to pack up the buses (in blue and pink varieties). Before they can even board, there is strife — many of the women fell prey to the stereotype and over-packed.
When rearranging necessitates taking some bags out to fit them in, Nikki Tribe Something starts freaking out about her Louis Vuitton bag. She becomes angry at Natasha, who's spearheading the luggage reorganization initiative.
Natasha is shocked at Nikki's reaction, since she doesn't even know what's going on. Natasha concludes from this that Nikki is on drugs and in need of medication. So she needs drugs on top of her drugs? That sounds about right, per the Rock of Love School of Pharmacology. Dr. Drew, stay far, far away.
We cut to Nikki Tribe Something, assuring us that everything she takes is "legal."
"[Burp] OhscuzemeIburptaah. I'sdrinkingalilearlyok," is Nikki's way of punctuating her assurance of legal activity. On second thought: hurry, Dr. Drew, hurry.
The girls essentially divide themselves in half. The pink bus contains:
And the blue bus rolls at this speed:
Taya explains that there is "scandal" on the pink bus. Did Michael Jackson hitch a ride with the Elephant Man's bones in his satchel again? Taya adds that she wouldn't even fall asleep on that bus. That's wise.
The way the girls have segregated themselves reminds me of something. Hmmmm. What could it be?
Why, it's the social divide that emerged in the first season! But this time, the girls didn't even wait an episode: they got right down to it. The lesson? These Rock of Love Bus girls move fast.
They get right down to fighting, too. On the pink bus, Marcia addresses the group, announcing the perils of flushing toilet paper and tampons down the bus toilet. Ashely takes the opportunity to write a song about Marcia "taking a deuce" and looking like a beaver. I just love that lite-rock sound, don't you?
Ashley explains her aggression thusly: "I'm hammered. I'm, like, having fun. I'm rockin' out. And, you know, I just see this girl Marcia. She's not blonde, and I was like, I'm pickin' on this girl tonight." Look, at least she's not the type to act without motive. Ashley, in a seemingly different part of the bus, gathers the girls around to hear her song, which now mocks Marica's Brazilian way of pronouncing things. We see an interview in which Marcia explains that because she's Brazilian, she doesn't put up with crap. So it's a curse and a gift!
Marcia's response to Ashley's ditty is alcohol.
This seems to shut Ashley up, which is exactly the point. What a clever plan on Marcia's part! For no specific reason, Melissa melts down over the tumultuous scene.
In a hilarious contrast to all this bickering and drink-slinging, the blue bus is literally singing "Kumbaya."
Bravo, casting department. Bra. Vo.
The girls soon arrive at Bret's show.
Here, they join him onstage to show that they're there for him by making out with each other.
It actually makes more sense than it sounds.
Farrah interviews, "I think when I get drunk, I'm a lesbian." Aren't we all? Also: way to foil the VH1 method of motivation on this hetero dating show, Farrah. Keep the white wine away from this one!
Or, on second thought…
…don't. Farrah explains that some of her nights result in blackouts, and if she doesn't remember something, it didn't happen. She says this gravely. Clearly, she lives by these words. And speaking of not remembering, Gia interviews that her recollection of the concert is foggy, but if Farrah wants to lick her boobs, she's allowed. What a generous bunch.
And speaking of generosity…
…could someone tell Nikki Tribe Something that this isn't Bret?
Taya is appalled at what she sees. She interviews…
"I'm a centerfold model for Penthouse, and I'm the classiest one here at this point!" Her genuine amazement at this fact is very endearing. Don't expect the other girls to think so, though. Between the pearl-clutching and the brown hair, chances of Taya's popularity are slim to none.
After the show, it's…
…the after party. Things go well for a few seconds until Ashley tells Beverly that her platform-cloggy-cowboyish boots are "illegal." She adds that they make her feel insecure. Beverly retorts that Ashley's dress makes her feel insecure. You know, at least they're owning up to the insecurity that plagues so many women. That's what really matters.
Ashley seems genuinely shocked that Beverly would insult her fashion choice.
She gets up in Beverly's face, doing a little dance.
Ashley's so enamored with being offensive that it's as if every dis is a thrill ride. That's what I'm getting from this scene, anyway. Beverly eventually takes a shot and throws her empty cup at the feet of Gia, an ally of Ashley. This causes way more confusion than it should, but eventually it all gets sorted out and Gia throws a drink on Beverly, as well as the cup that contained it.
And to think that had Beverly invested in some peroxide, all of this never would have happened. She practically was asking for trouble, coming in here all brunette and crap.
Eventually, Bret makes his way into the party, but he's missing his voice. He's really endearing this way, actually.
Gia, announces to the world that she's wearing no underwear by hopping up on the bar.
Y'know, at this point, I shouldn't be surprised, and yet, no panties gets me every time.
Since this is a special occasion, with Bret being there and all, Nikki wonders what she can do with her test-tube shot. She also explains that she's very horny and hasn't been with a guy in months because, "I had a girlfriend. I thought this girlfriend thing was gonna work out because whatever."
This is seriously her most articulate explanation of anything yet. Also, she sounds a little like littleloca.
In case you had any doubt, necessity breeds invention. And, perhaps, bacteria. For you see, what Nikki and Gia decide to do can only be described on air in a serious of reaction shots.
You know when the seemingly unskeevable Bret Michaels is taken aback, extreme human behavior is underway. Marcia uses a Portuguese word to explain what happened and concludes by saying, "You do not serve shots from [Portuguese word]." Let's just say that in this scene, Gia didn't get her tubes tied — she added to them and Nikki drank from her bounty. And by bounty, I mean vagina.
So that's kind of show-stopping, and yet it goes on! Heather decides to leave and slips as she's approaching the door. Since she's eliminated in this episode (spoiler!) and doesn't do much else, she really will be known as the girl who fell from now on. Whatever, at least she can take solace that her claim to fame doesn't have to be described in Portuguese to be appropriate for cable television.
Melissa rants that "everybody's acting crazy and whorish!" On this show, that's a given. She might as well have said, "Everybody's existing!" She takes Bret aside to tell him that she's not looking forward to dealing with this wild scene, but as long as it's not for nothing, she'll put up with it. She basically seems to be telling him that she better win, or else. Bret rightly interviews that he's not feeling her ultimatum.
The girls check into the Louisville Sheraton, which gets a raving review from Samantha. H.B.I.C. Farrah explains that the three rooms they had access to created three cliques:
Her clique, the Blontourage. (It probably should be Blondtourage, but the "D" sounds silent when they say it so please allow me to streamline while understanding that they are grouped by the color of their hair because OF COURSE THEY ARE.)
Then there are the semi-crazies.
They are Blontourage allies.
Finally, there are the quiet zombies.
And even though the fact that they're zombies is a drag and all, at least they're quiet. They'd be totally insufferable if we had to listen to them yammer about eating brains all the time.
After Farrah and Gia leave the queit zombies to their silence, Taya rants about the drinking that's taking place. She seems to have a general disdain for partying.
This shot summarizes her attitude perfectly. I cannot wait to see how she triggers her competitors! Taya truly is the girl with all the potential in the world right now.
Meanwhile, Constandina shows Brittaney and Melissa some bellydancing moves and wonders aloud if Bret's ever been touched by the Goddess.
The Goddess as played by Cristal Connors or Nomi Malone? It's an important distinction.
Meanwhile, if you think you know which girl is the biggest mess, prepare to get a load of Marcia. She does a little Ashlee Simpson-esque jig for some girls, and then runs to the bathroom…
…where she vomits, of course. Then, Bret visits the girls. Marcia seems to catch wind of this, finds him and repeatedly kisses him.
This seems to be seconds after vomiting. Someone in the background says something equating Marcia to Doritos. Bret, who still has no idea he just slapped taste-buds that were vomit-coated, says, "It's the best Dorito I've ever tasted." That's because it wasn't a Dorito!
Bret moves from Marica's nacho vomit to a girl of the cooler ranch variety — he asks Beverly to spend some alone time with him. He explains that he's singled her out because at the show, she knew the words to his songs. Even his solo work! It's nice that Bret's so unabashed about favoring the girls who stroke his ego the most. It makes speculation on my part virtually unnecessary.
Beverly says that back when she had a boyfriend, Bret was on her free-pass list (i.e. the list of celebrities she had license to bang, supposedly without jeopardizing the relationship, though it probably never works out that way)…right above Ed Norton. Bret clearly is offended by this. Regarding his ego, Bev giveth and taketh away.
On his way out of his room, Brittaney attempts to connect with him, but is interrupted by Marcia and then the Blontourage, who succeed in nabbing him.
Bret admits that these girls are fun, but wonders aloud just how significant he is personally to them — are they partying with him because he's Bret, or just because he's a rock star? He asks if it's just a matter of, "Insert rock star here." Since when is inserting a rock star not the objective of this show? Anyway, they don't have time to ponder this for too long, because one of the girls suggests a group kiss and they immediately do it.
The best thing about this is that Nikki Tribe Something never gets in on the action. She stands there going, "Wait…" She's great with test tubes but all-thumbs when it comes to fiveway kisses. Weird!
Back in the room with the bulk of the girls, Samantha strikes a pose that suggests a sophisticated Kimmy Gibbler.
Seriously, this girl is an enigma wrapped in a question mark wrapped in ABC's T.G.I.F. lineup. Farrah, meanwhile, interviews that "Marcia Brazil" is the craziest drunk she's ever seen, and you get the feeling that Farrah's seen a lot of crazy drunks. She needs only to stand in front of a mirror to see one. Marcia attempts a cartwheel to entertain her competitors.
Failed cartwheel = successful entertainment. It'd be ironic if it weren't so obvious.
Marcia stands on a table and bellows something like, "If you guys don't shut up, I'm gonna break my bucket!" Like anyone cares about your bucket, lady! She eats chips and then throws them in Ashley's face. Ashley then pulls a Marcia and pours alcohol over her head.
Payback's not just a bitch; it's a bitch with deja vu. Marcia interviews that it's "not cool" to waste alcohol like Ashley did. Seriously, if you waste alcohol, what will you have to destroy your brain cells to make you forget that you did the same thing last night? In response to Ashley's splash (Splashley?), Marcia attempts to choke her. She, in turn, flails as if Marcia is capable of doing anything she sets out to in her drunken state.
When this is broken up, Marcia gets sad-drunk and starts packing her bag, threatening to leave. Bret attempts to calm her down and she tells him to go away. He says he's not going away because it's his party. Marcia says all Bret cares about is his party. Duh!
Bret then sits with Ashley, whom he convinces to stay.
He tells her he's about to tell the group something that's going to "chill all of this out."
He gives them an anti-violence speech and then tells them that he has to go figure out elimination right now. OMG! Elimination? On this show? Who ever would have expected?
But so it is.
The most notable thing early on at this elimination is how plastered Nikki Tribe Something is.
It's really fantastic watching her irritate the silicone off Taya.
Bret gravely addresses the group, telling the girls that there is "an absolute urgency" to what they're doing. Seriously, after lacking in it for seven months, pop culture needs Rock of Love! Anyway, because of this urgency (which I guess means "lack of time"), elimination is going to go a little differently than it has in the past. Bret calls the names of seven girls — Marci, Stephanie, Gia, Heather, Nikki, Brittaney, and Marcia. He tells the remaining 13 that they're safe and to board the buses.
He only has two passes left for the remaining pool of seven.
He goes through each. Heather is too normal for this insanity. Stephanie hasn't spoken to Bret. Who is Marci? Gia is fun. Brittaney is a porn star, who needs to be thought over. Marcia is a Brazilian firecracker, who may kill them.
Nikki, meanwhile, is a mess who's becoming messier.
She seems to ball all the stages of grief into one big blaarrrgh. Also, she seems to have "F*** YOU" tattooed on her knuckles. Tough! But not tough enough to stay. Marcia and Brittaney are, the rest are going home.
Bret says that he needs someone who's strong enough, fun enough, outgoing enough and grounded enough to hang, implying that these girls are not that. Sad, but what can you do? Rock and roll is an unforgiving beast and reality TV is much, much worse.
Nikki has a breakdown and eventually has to be escorted from set.
I know how she feels. Notgonlieahmrealgonmissherok?
Related content
Rock of Love Bus show page
Rock of Love videos and extras


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GAINESVILLE, Fla. - College of Charleston's chance to win the Gainesville Regional and a spot in an NCAA super regional will have to wait until Monday.
The Cougars (43-17) are waiting to face the winner of the North Carolina-Long Beach State game, which was delayed twice and finally postponed due to heavy rain on Sunday. The fourth-seeded Cougars will face the winner of that game on Monday at McKethan Stadium.
The North Carolina-Long Beach State game, which started at 1 p.m. on Sunday, was delayed twice because of heavy rain and finally postponed until Monday at noon. The game was in the seventh inning with the Dirtbags leading 5-4 in the top of the seventh inning.
"It's disappointing that we're not going to be able to play (Sunday)," said College of Charleston coach Monte Lee. "We were ready to go today, but the weather didn't cooperate. There's really nothing we can do about it, except get back to the hotel and get some rest. We're not going to worry about because the weather is out of our control. We'll be ready to go (Monday)."
A Cougars loss in the first game on Monday would result in a second game that would be played on Tuesday at noon.
This is the third day in a row that the Gainesville Regional was delayed because of weather.
College of Charleston will have two opportunities to win one game to capture the Gainesville Regional title. Freshman Tyler Thornton (6-5, 3.13 ERA) is slated to get the start for the Cougars.
- Keywords
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- About
- Services
- Collections
- Research
- Help
- Off-Campus
- QuickLinks
The Hihn Younger Archive contains a large number of documents, some of which are available on this website as image files or HTML files. For others, descriptions are provided. The documents and descriptions are arranged in the following categories:
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The Hihn Younger Archive contains two main collections of correspondence, one of F. A. Hihn & the F. A. Hihn Company from 1901 to 1902, and the other between Charles B. Younger Sr. and Charles B. Younger Jr. from1892 to 1935.
The F.A. Hihn Letters
The University Library, UC Santa Cruz, The Friends of the UCSC Library
and Researchers Anonymous of the Museum of Art & History
cordially invite you to
1992 - 2001
January 2002
by Stanley D. Stevens
Librarian Emeritus
Compilations and Transcriptions:
1992: Louis Edwin Hihn, From Childhood to My Last Hurrah: My Memorable Experiences. An Autobiography.
1996- Correspondence of Charles B. Younger Sr. and Charles B. Younger Jr., Santa Cruz, California, Attorneys 1998: and Counsellors at Law. [4,167 letters in 13 vols, plus cumulative index, of an estimated 70 vols]
Users of this Website will encounter names of members of the Hihn and Younger families. These charts will facilitate their identification and show their relationship to parents, children, grand-children, and great-grand-children.
Three brothers of the Hühn family from Holzminden, Germany, came to Santa Cruz: Frederick Augustus (for the Gold Rush in 1849), and twin-brothers Friedrich Hugo Hermann and Friedrich Emil Ludewig (in the 50s).
The Correspondence of Charles B. Younger Sr. and Charles B. Younger Jr., spans more than forty years, from September 1, 1892, through May 12, 1935, the day that Charles B. Younger Jr. died.
Letters of F. A. Hihn & F. A. Hihn Company
November 25, 1901 - March 14, 1902
Transcribed and Indexed by
Stanley D. Stevens
A German immigrant to California's Gold Rush, F. A. Hihn is considered by many as the County's most influential entrepreneur, from arrival in Santa Cruz (1851) to his death (1913).
Charles Bruce Younger Sr. was Hihn's principal attorney and dean of the legal community, and the two families were united by the marriage of Agnes Hihn, Therese and F. A. Hihn's youngest daughter, and C. B. Younger Jr.


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- 3
- people in the U.S. have this name View Holly Montero on Whitepages
Meaning & Origins
From the vocabulary word denoting the evergreen shrub or tree (Middle English holi(n), Old English holegn). The name was first used at the beginning of the 20th century, and has been particularly popular since the 1990s. It is bestowed especially on girls born around Christmas, when sprigs of holly are traditionally taken indoors to decorate rooms.
|269th in the U.S.
Spanish: occupational name for a beater or other assistant at a hunt, from an agent derivative of monte, which, as well as meaning 'mountain', 'hill', could be used in the transferred sense of a game forest on wooded upland. The occupational term was itself also used as a title for any of various palace functionaries, and some cases of the surname may derive from this.
|2,895th in the U.S.
Nicknames & variations
Hollie, Holli, Hollye, Holley, Hollee, Holle, Holloway, Holl, Hollow, Holla
Montgomery, Montoya, Montes, Montano, Montalvo, Montague, Montanez, Montenegro, Montez, Montiel