MISSING THE MISJOINDER MARK: IMPROVING CRIMINAL JOINDER OF OFFENSES IN CAPITAL-SENTENCING JURISDICTIONS.

• Author: Hernandez, Milton J., IV

INTRODUCTION 653 I. JOINDER AND SEVERANCE OF OFFENSES 657 A. History of Joinder in the Federal System 661 B. Federal Rules 8, 14, and 13 662 II. JOINDER AND SEVERANCE IN MOST JURISDICTIONS 664 III. JOINDER AND SEVERANCE IN LOUISIANA 667 A. History of Joinder in Louisiana 668 1. Pre-Code Jurisprudential Misjoinder 669 2. The 1928 Code of Criminal Procedure and Its Fallout 670 3. Article 218's Repeal 672 4. 1975 Amendment and Interpretation 674 B. Louisiana's Current Joinder and Severance Regime 676 IV. IMPROVING CAPITAL-OFFENSE JOINDER AND SEVERANCE 680 A. Arguments for Liberal Joinder Regimes 681 B. Research Raising Concerns with Liberal Joinder Regimes 682 1. From the Late 20th Century 682 2. Leipold and Abbasi 684 C. Jurisdictions Already Treating Capital Offenses Differently 686 D. Combatting Plea Bargaining and Trial Penalty Concerns 687 E. Irrelevance of Actual Death Penalty Use 688 F. Jurisprudential Roots in Joinder Concerns 690 G. Courts Should Offer Structural Protection, Not Discretionary Review 692 CONCLUSION 695 APPENDICES 695 A. States' Joinder of Offenses Provisions 695 1. States That Maintain the "Felonies or Misdemeanors or Both" Language 695 2. States with Similar Language to "Felonies or Misdemeanors or Both" 699 3. States with Language Different From "Felonies or Misdemeanors or Both" 700 B. States' Severance Provisions 704 C. Jurisdictions' Death Penalty Provisions 712 1. Jurisdictions with Statutory Authority to Use Death Penalty 712 2. States with Moratoriums on the Death Penalty 714 3. States That Have Abolished the Death Penalty 714 INTRODUCTION

In 2005, Alabama charged a criminal defendant with the murder of a two-year-old, a capital offense under Alabama law. (1) Before trial, the prosecution joined the murder charge with a charge alleging possession of a controlled substance, which carried a lesser penalty of up to ten years' imprisonment. (2) A jury ultimately convicted the defendant of both charges (3) and recommended that the defendant receive the death penalty for the murder charge. (4) The trial court upheld the jury's death penalty recommendation and conviction for the possession charge. (5) On appeal, the defendant argued that the joinder of the two offenses was improper, and that the two offenses should have been severed and tried in different proceedings. (6) After analyzing the relevant federal and state law, the Alabama Criminal Court of Appeals upheld the joinder because the offenses arose out of the same course of criminal conduct. (7) Joinder of the two offenses, the court found, did not prejudice the defendant, (8) despite the stark differences in the offenses' sentences.

In 2016, the Supreme Court of California decided a criminal case in which a jury convicted the defendant on four separate counts related to events that occurred over a two-month period: one count of first-degree murder; two counts of assault by a life prisoner with malice aforethought; and one count of custodial possession of a weapon. (9) At the penalty trial, the jury sentenced the defendant to death. (10) The defendant argued that the trial court "abused its discretion in denying his motion to sever" the murder count and one of the assault counts from the other two counts, contending that this violated his right to a reliable capital proceeding, among other rights-based violations."

In addition, the defendant contended that without the severance, he could not take the stand at his trial. (12) He argued that he had a potential defense to the first-degree murder charge--one that was inapplicable to the others--but because the charges were joined in one trial, he was forced to refrain from taking the stand so as not to incriminate himself on the less severe counts. (13) Following a lengthy discussion, the court rejected all of the defendant's severance and rights-violation arguments and upheld the joinder. (14) In deconstructing all of the prejudicial joinder arguments, the court said: "Contrary to defendant's arguments, we do not apply a heightened standard in assessing severance issues in capital cases." (15) The court affirmed the death sentence. (16)

In 2010, the Louisiana Supreme Court heard argument in a criminal case for a defendant charged with first-degree murder--a capital offense--and "five other counts" of noncapital offenses. (17) In a terse, one-page opinion, the Louisiana Supreme Court stated, almost dismissively, that "[t]he joinder was improper at the outset." (18)

How can these jurisdictions come to such different conclusions on whether joinder is proper in relatively similar situations? Of course, each individual criminal case is unique, but the contrast between a detailed appellate analysis and a swift pronouncement of improper joinder is intriguing.

In all state and federal jurisdictions in the United States, joinder allows prosecutors to join multiple offenses against a criminal defendant in one trial. Joinder pervades the American criminal justice system, and jurisdictions may see joinder in more than half of their cases. (19) Most states and the federal courts use a liberal joinder system, (20) where courts may join offenses regardless of punishment severity. Liberal joinder is based in judicial efficiency arguments premised on avoiding unnecessary trials and striving to conserve time, money, and other resources above all else. In such jurisdictions, courts may force a defendant to prepare for a trial in which she must simultaneously defend against a misdemeanor offense, like possession of marijuana, and a capital felony offense with a potential death sentence--even though the two charges may require completely different defense strategies.

Most U.S. jurisdictions have joinder and severance schemes that are somewhat similar to one another: they permit joinder of offenses when the offenses are based on the same act or transaction, are of the same or similar character, or are part of a common scheme or plan. (21) Most jurisdictions originally based their joinder regimes on the Federal Rules of Criminal Procedure, which went into effect in 1946. (22)

Generally, if either party feels the joinder is improper, they can use a jurisdiction's severance provision to request that the court examine the joinder. After a severance request, the judge will most commonly determine--either, depending on the jurisdiction's rules, in her discretion or by weighing the prejudice of the joinder against the public interest of judicial efficiency--whether severance is appropriate. A defendant who moves for severance of the offenses generally must meet a high burden to get the relief she seeks either at trial or on appeal. (23)

Most jurisdictions have such a process to review potentially prejudicial joinder. But some states offer parties additional structural protections. Specifically, in Louisiana, prosecutors may not join a capital charge against a criminal defendant with a noncapital charge, which carry less severe punishments. (24)

For decades, judges and scholars have argued for liberal joinder using judicial efficiency justifications. Other scholars and researchers, however, have criticized such joinder regimes by pointing out the ways in which joinder may prejudice defendants or presenting data to show empirical evidence of prejudice. (25) Studies have found that juries can prejudice defendants by confusing the evidence of one offense with that of the joined offense or inferring the defendant's criminality based on the multiple charges. (26) By far the strongest point against joinder is that a defendant's chance of conviction at trial rises merely from the state charging her with more than one offense. (27) Despite these indicia of a burdensome system, no one has yet suggested that jurisdictions revise their joinder regimes to prohibit the joinder of capital and noncapital offenses.

Jurisdictions should no longer broadly protect the joinder of all types of offenses under their regimes in the name of judicial efficiency or juridical discretion. Instead, jurisdictions should categorically protect defendants charged with capital offenses from the potential prejudice joinder can create, as Louisiana has for nearly a century. Born from the state's unique judicial history, Louisiana's joinder regime restricted joinder to those offenses that courts can try by the same "mode of trial," (28) a phrase that has undergone statutory interpretation, constitutional examination, and judicial scrutiny. Louisiana offers its criminal defendants a categorical procedural protection by prohibiting the joinder of capital offenses with noncapital offenses.

For jurisdictions that seek to address the growing body of scholarship on joinder's negative impacts while continuing to honor arguments promoting judicial efficiency, prohibiting the joinder of capital and noncapital offenses provides a favorable solution. Further, jurisdictions--particularly those that maintain the death penalty--should adopt a regime with a joinder restriction on capital and noncapital offenses to provide criminal defendants with an additional joinder protection not based on discretion alone.

This Article first discusses the history and current status of joinder in common law jurisdictions, followed by the history and current status of joinder in Louisiana. It then explains capital-offense joinder in Louisiana and how it differs from other U.S. jurisdictions. The Article further analyzes the arguments for liberal joinder and critiques each by presenting field research, historical arguments, and practical considerations. The Article concludes by urging other jurisdictions, particularly those with capital-sentencing capabilities or capital-offense punishments, to amend their joinder provisions to categorically prohibit the joinder of capital offenses with noncapital offenses.

If jurisdictions revise their joinder schemes in this way, they will maintain liberal joinder regimes for the most common criminal cases, where joinder is most...